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3^ 

RECLAMATION OF FUGITIVES FROM SERVICE. 



AN A R G U ]M E N T 



FOR THE DEFENDANT, 



SUBMITTED TO 



THE SUPREME COURT OF THE UNITED STATES, 



AT THE DECEMBER TERM, 1846, 



IN THE CASE OF 



WHARTON JONES vs. JOfIN VANZANDT. 



BY S. P. CHASE 



CINCINNATI: 

PRINTED BY R. P. DONOGH & CO., 106 MAIN STREET. 

1847. 



^(L4^/ 






<~io 



ARGUMENT. 



ME. CHIEF JUSTICE AND JUDGES : 



I beg leave to submit to your con- 
sideration an argument in behalf of an old man, who is 
charged, under the act of Congress, of February 12, 
1793, with having concealed and harbored a fugitive 
slave. 

Oppressed, and well nigh borne down by the painful 
consciousness, that the principles and positions, which it 
will be my duty to maintain, can derive no credit what- 
ever from the reputation of the advocate, I have spared 
no pains in gathering around them whatever of authority 
and argument the most careful research, and the most 
deliberate reflection could supply. I have sought instruc- 
tion wherever I could find it; I have looked into the 
reported decisions of almost all the state courts, and of 
this court ; I have examined and compared state legisla- 
tion and federal; above all, I have consulted the consti- 
tution of the Union, and the history of its foi-mation and 
adoption. I have done this, because I am well assured, 
that the issues, now presented to this court for solemn 
adjudication, reach to whatever is dear in constitutional 
hberty, and whatever is precious in political union. Not 

John Vanzandt alone — not numerous individuals only 

but the States also, and the Nation itself must be deeply 



4 PRELIMINARY REMARKS. 

affected by the decision to be pronounced in this case. 
I ask, therefore — and the character of this venerable 
court strongly assures me I slrall not ask in vain, — for a 
deliberate, unprejudiced, and thorough examination of 
the several positions I shall assume, and of the reason- 
ings and arguments by which they are defended. 

I shall discuss the issues, presented by the record, with 
freedom and with earnestness: but I shall advance 
nothing in the character of a mere advocate, bound to 
his cause only by his retainer. When great questions, 
affecting the most sacred personal rights of the People, 
and the most delicate relations of the States, and the 
most important duties of the Government, are to be 
examined before a tribunal clothed with the awful and 
affecting responsibility of final decision, it ill becomes a 
lawyer, called to bear a part in the discussion, to strive 
for victory in disputation, or the triumph of a side. I 
shall do no such violence to my own convictions of right 
and duty, as to urge here any argument or statement for 
which I am not willing to be held responsible as a 
citizen and as a man. 

And here I will frankly say, at the outset, what all 
must know, that the counsel for the defendant cannot but 
feel. — I am, I confess, somewhat embarrassed by the pe- 
culiar constitution of the tribunal which I address. 

I do not, indeed, permit myself to doubt that every 
consideration of interest, and every feeling of prejudice 
will be, as far as practicable, excluded from all influence 
upon the decision of the Court. On the contrary, the 
expectation, which I indulge with confidence, of a decision 
favorable to the defendant upon some of the questions 
presented by the record, is fully sanctioned by the 
weight of reason and authority, which the impartiality 



PRELIMINARY REMARKS. O 

of judges in slaveholding states has supplied, or has 
greatly increased. 

Other questions, however, are presented and must be 
discussed, in the argument of which I must expect to 
encounter some hostile prepossession, opinion and au- 
thority. My fear is, that what I shall deem it my duty 
to advance on these questions, may be regarded by the 
Court as a rash attempt to unsettle established doctrines, 
and, by some of the members of the Court, as an 
unwarrantable attack upon constitutional guaranties, in 
which they, with many other citizens, have a peculiar 
interest. 

I ask, however, for a dispassionate Hearing. If what 
I urge has not the sanction of reason and truth, let it be 
condemned: if it has, I trust it will prevail — I am sure it 
will ultimately prevail — whatever opinion and authority 
may stand in the way. Opinion and authority may 
stand for law, but do not always represent the law. 
There was a time, and a long time, when opinion and 
authority condemned as rash the doctrine that juries 
possess the right to determine, in hbel cases, not merely 
the question of publishing, but the general question of 
hbel or no hbel; and yet the earlier advocates of the 
doctrine lived to see it established as law. So, for many 
years, opinion and authority sanctioned the doctrine 
that slaves might be held in England; but, after 
thorough investigation, this doctrine was overthrown, and 
that maxim, so fraught with important results, established, 
that slavery is strictly local, and cannot be extended 
beyond the territorial hmits of the state allowing it. 

Encouraged by these recollections, and assured of the 
disposition of the Court to ascertain and declare the law, 
whatever it may be, I shall proceed to state the facts out 



6 



THE FACTS OF THE TRANSACTION. 



of which the questions before the Court have arisen. I 
make this statement, partly from the abstract of the evi- 
dence contained in the report of the case by Mr. Justice 
McLean, and partly from my own notes and recollection, 
because it seems to me that a general knowledge of the 
facts of the transaction will conduce to a clearer under- 
standing of questions of law. 

The defendant, John Vanzandt, is an old man, of lim- 
ited education and slender means, but distinguished by 
unquestioned integrity and benevolence of heart He is a 
farmer, occupying a small property in the neighborhood of 
Cincinnati, and maintaining himself and family by the 
sale of its products in the markets of the city. On Sat- 
urday, the 23rd day of April, 1842, after attending the 
market as usual, he went out of the city to Walnut Hills, 
where he passed the night with a friend. The next 
morning, when he rose very early to go home, he found 
in the road a company of negroes, consisting of a middle 
aged man, his wife, their children, the wife's mother, and 
two or three other persons, — nine in all. These persons, 
it appears, had escaped from slavery in Kentucky, and 
had been conducted, some twelve miles or more, from 
where they crossed the Ohio, to Walnut Hills. Vanzandt 
saw them for the first time in the road where he found 
them. He had nothing to do with their escape. But, 
upon their solicitation, or that of the person who had 
conducted them to Walnut Hills, he undertook to convey 
them in his wagon to Lebanon or Springborough, thirty 
or thirty-five miles northward from Cincinnati. There 
was no evidence that he had any positive knowledge that 
they were fugitives from slavery, or any information what- 
ever on the subject, except what he derived from tlie 



FACTS OF THE TRANSACTION THE SUITS BROUGHT. 7 

Statements of the negroes themselves. He believed, doubt- 
less, that they were fugitive slaves, but he had no notice 

whatever, — unless such intelligence as this be notice, 

that the negroes had been held to service or labor in 
Kentucky under the laws thereof, and had escaped from 
that state into Ohio. 

Under these circumstances he received them into his 
wagon, which was a covered vehicle of the kind common- 
ly used by farmers attending the markets, and proceeded 
towards Springborough. One of them, a man named An- 
drew, took his seat in front, in open view, as the driver of 
the wagon. 

They had travelled about fifteen miles in four hours, 
when their farther progress was arrested by two bold vil- 
lains, who, without any legal process, without any au- 
tliority or request from any claimant or any other person, 
in broad day, in open breach of the laws of Ohio, under- 
took to seize the blacks and carry them out of the state 
by force, on suspicion that they were fugitive slaves. In 
this daring and criminal attempt they were successful 
except as to Andrew, the driver, who leaped from his 
seat, and escaped. 

All the negroes had been the slaves of Wharton Jones, 
the plaintiff, and all of them, except Andrew, were re- 
covered. He never returned. 

Under these circumstances the plaintiff prosecuted two 
suits against Vanzandt: one in case, to recover the dam- 
ages he had sustained by reason of the loss of Andrew, 
and the expenses of recapturing the others, and another 
in debt to recover the penalty of five hundred dollars 
given by the Act of 1793. The first of these actions is 
still pending in the Circuit Court: the second, which was 



8 ' THE QUESTIONS CERTIFIED. 

grounded upon alleged acts of the defendant in relation 
to Andrew only, has been brought into this Court upon a 
certificate of division upon various questions, which arose 
during the progress of the trial, and, after verdict, upon a 
motion in arrest of judgment. 

The questions, which arose during the progress of the 
trial and are certified for decision, are these : 

1. Whether, under the 4th section of the act of I2th of February, 1793, respect- 
ing fugitives from justice and persons escaping from the service of their masters, on 
a charge for harboring and concealing a fugitive from labor, the notice must be in 
writing by the claimant or his agent, stating that such person is a fugitive from 
labor under the third section of the above act, and served on the person harboring 
or concealing such fugitive, to make him liable to the penalty of five hundred dol- 
lars under the act. 

2. Whether such notice, if not in writing and served as aforesaid must be given 
verbally by the claimant or his agent to the person who harbors or conceals the 
fugitive, or, whether to charge him under the statute, a general notice to the public 
in a newspaper is necessary. 

3. Whether clear proof of the knowledge of the defendant by his own confes- 
sion or otherwise, that he knew the colored person was a slave or fugitive from 
labor, though he may have acquired such knowledge from the slave himself, or 
otherwise, is not sufficient to charge him with notice. 

4. Whether receiving the fugitive from labor at three o'clock in the morning, at a 
place in the State of Ohio, about twelve miles distant from the place in Kentucky, 
where the fugitive was held to labor, from a certain individual, and transporting him 
in a closely covered wagon, twelve or fourteen miles, so that the boy thereby es- 
caped pursuit, and his services were thereby lost to his master, is not a harboring or 
concealing of the fugitive within the statute. 

5. Whether a transportation under the above circumstances, though the boy 
should be recaptured by his master, is not a harboring or concealing him within the 
statute. 

G. Whether such a transportation of him in an open wagon, whereby the servi- 
ces of the boy were entirely lost to his master, is not a harboring or concealing of 
him within the statute. 

7. Whether a claim of the fugitive from the person harboring or concealing him 
must precede or accompany the notice. 

8. Whether any overt act, so marked in its character, as to show an intention to 
elude the vigilance of the master or his agent, and calculated to attain such an ob- 
ject, is a harboring of the fugitive within the statute. 



THE QUESTIONS CERTIFIED. 9 

The questions upon the motion in arrest, are these: 

1. Whether the first and second counts in the plaintiff's declaration contain the 
necessary averments that Andrew, the colored man, escaped from the State of Ken- 
lucky into the State of Ohio. 

2. Whether said counts contain the necessary averment of notice that said An- 
drew was a fugitive from labor within the description of the act of Congress. 

3. Whether the averment in said counts that the defendant harbored said An- 
drew are sufficient. 

4. Whether said counts are otherwise sufficient. 

5. Whether the act of Congress, approved February 12, 1793, be repugnant to 
the Constitution of the United States. 

6. Whether said act be repugnant to the ordinance of Congress, adopted July, 
1787, entitled "An Ordinance for the Government of the Territory of the United 
States northwest of the River Ohio.' 

The declaration, upon which the plaintiff went to tri- 
al, contained four counts. The first charged the defen- 
dant with the offence of harborings detaining^ concealing 
and keeping Andrew, a fugitive from service ; the second 
with the offence of concealing the fugitive ; the third with 
the offence of obstructing the claimant in an attempt to 
arrest the fugitive; the fourth with the offence of res- 
cuing the fugitive from the claimant after seizure. 

The verdict of the jury was general; but, after its ren- 
dition and entry, and after a motion in arrest of judg- 
ment, an entry was allowed to be made upon the jour- 
nal, that the plaintiff had abandoned the third and fourth 
counts before the cause was submitted to the jury. This 
entry was allowed upon the statement of the counsel 
for the plaintiff, that these counts were abandoned during 
the progress of the trial, though no application was made 
to the court to instruct the jury to disregard them. 

The questions, now before the court in relation to the 
sufficiency of the declaration, arise, therefore, upon the 
first and second counts only. 



10 PLAINTIFFS DECLARATION. 

These are as follows: 

Wharton Jones, a citizen of and resident in Kentucky, by Charles 
Fox his attorney, complains of John Vanzandt a citizen of and resident in Ohio, 
who was summoned to answer unto the plaintiff in a plea of debt : for that whereas 
a certain person, to wit Andrew, aged about 30 years, Letta aged about 30 years, 
on the 23d day of May, 1842, at Boone county, in the State of Kentucky, was the 
slave and in possession of the plaintiff, and his property; and owed service and was 
held to labor to the plaintiff by the laws of Kentucky; unlawfully, wrongfully and 
unjustly, without the licence or consent, and against the will of the plaintiff departed 
and went away from and out of the service of the plaintiff of said Boone county, and 
came to the defendant at Ham.ilton county, in the State and District of Ohio, and 
was there a fugitive from labor ; and the defendant well knowing that the said An- 
drew was the slave of the plaintiff and a fugitive from labor, yet afterwards, to wit, 
on the day and year aforesaid, at said District, contriving and unlawfully and un- 
justly intending to injure the plaintiff and to deprive him of said slave and his ser- 
vice; and of the profits, benefits and advantages that might and would otherwise 
have arisen and accrued to him from said slave and his service, did then and there 
knowin<>-ly and willingly, wrongfully, unjustly and unlawfully receive the said 
slave of the plaintiff into his service ; and knowingly and willingly harbor, detain 
and conceal and keep the said slave, in consequence of which the plaintiff lost said 
slave and was deprived of his services and of all benefits, profits and advantages 
which mirrht and would have accrued and arisen to him from such slave and his 
service, contrary to the statute of the United States, in such case made and provided, 
whereby the defendant forfeited the sum of five hundred dollars to and for the use 
of the plaintiff; yet the defendant, though often requested, has not paid the same 
nor any part thereof: 

And, also, for that whereas, on the day and year aforesaid, at said Boone county, 
a certain person, to wit, Andrew, aged about 30 years, was the slave of and in the 
possession of the plaintiff and his property, and owed service and was held to labor 
to the plaintiff by the laws of the State of Kentucky, did unlawfully, wrongfully, 
and unjustly without the licence or consent and against the will of the plaintiff, 
depart and go away from and out of his service, to wit, at Boone county aforesaid, 
and came to Hamilton county in the State and District of Ohio, to the defendant, 
ami the defenilant had notice tliat the said Andrew was the slave of the plaintiff 
and ;i fugitive from labor; yet afterwards, to wit, on the day and year aforesaid at 
the District aforesaid, contriving and wrongfully and unjustly intending to injure 
the plaintiff and deprive him of the said slave and his service, then and there on the 
day and year aforesaid, at the District aforesaid, knowingly and willingly, unjustly, 
wrongfully and unlawfully conceal the s;iid slave from the plaintiff, in consequence 
of which the plaintiff lost said slave and was deprived of his service and of all ])ro- 
fits, i)enefits and ailvantagcs which might nnd otherwise would have arisen and 
accrued to the plaintitT from such slave and his service, contrary to the statute of 
the United States in such case made and provided, whereby the defendant forfeited 



IMF, A CI' OF CONCiUES^. 11 

the sum of live hundred dollars to and tor the use of the plaintiti', vet thoucrh often 
requested he has not paid the same nor any part thereof, to the damage of tiu- 
plaintifl' in the sum of Five Hundred Dollars, and therefore, &c. 

The claim of the plaiiitilu niride in this declaration, 
rests wholly upon the act of Congress of 1793. ! there- 
fore (juote the third and fourth sections, which alone 
touch upon tlie matters in controversy, 

"5 3. Be it enacted, That when a person, held to labor in any of the United 
States, or in either of the territories on the north-west or south of the river Ohio, un- 
der the laws thereof, shall escape into any other of the said states or territory, the person 
to whom such labor or service may be due, his agent or attorney, is hereby empowered 
to seize or arrest such fugitive from labor, and to take him or her before any judjre 
of the circuit or district courts of the tJnited States, residing or being within the stale, 
or before any magistrate of a county, city, or town corporate, wherein such arrest 
or seizure shall be made ; and, upon proof to the satisfaction of such judge or maor- 
istratc, either by oral testimony, or affidavit taken before and certified by a macris- 
trate of any such state or territory, that the person so seized or arrested doth, under 
the laws of the state or territory from which he or she fled, owe service or labor to 
the person claiming him or her, it shall be the duty of such judge or magistrate to 
give a certificate thereof to such claimant, his agent or attorney, which shall be 
a sufficient warrant for removing the said fugitive from labor to the state or territory 
from which he or she fled. 

" 5 4. That any person who shall knowingly and willingly obstruct or hinder 
such claimant, his agent or attorney, in so seizing or arresting such fugitive from 
labor, or shall rescue such fugitive from such claimant, his agent or attorney, when 
so arrested pursuant to the authority herein given or declared, or shall harbor or 
conceal such person, after notice that he or she was a fugitive from labor as afore- 
said, shall for either of the said offences, forfeit and pay the sum of five hundred 
dollars; which penalty may be recovered by and for the benefit of such claimant, 
by action of debt, in any court proper to try the same : saving, moreover, to the 
person claiming such labor or service, his right of action for or on account of the 
said injuries or either of them." 

These legislative provisions were designed lo give 
effect to the last clause of the second section of the 
fourth article of the Constitution of the United States, 
which is in these words : 

" No person held to service or labor in one state, under the laws thereof, escaping 
into another, shall, in consequence of any law or regulation therein, be discharged 



12 QUESTIONS FOR ARGUMENT. 

from such service or labor, but shall be tlelivered up on claim of the party to whom 
such labor or service may be due." 

Having thus stated the questions certified for decision, 
and having recited so much of the record and of the law 
and constitution as seems necessary to a clear understand- 
ing of them, I shall proceed, at once, to the discussion 
before me, again earnestly invoking the patient and de- 
liberate attention of the Court. 

It would be as useless, as it would be tedious, to take 
up and examine the questions one by one in the order in 
which they are presented by the record. Upon the first, 
in my judgment, no difference of opinion can exist. No 
one, I think, would contend that a writfeji notice from the 
claimant of a fugitive from service is essential to the 
offence of harboring or concealing as defined by the stat- 
ute. Several of the questions, also, present the same 
point, in different phrases and with varied circumstances, 
and an argument upon each of these is manifestly need- 
less. 

I shall adopt, therefore, the order of investigation 
which seems to me best adapted to a perspicuous exhib- 
ition of the true merits of the controversy. I shall en- 
quire : 

1. Whether the plaintiff's declaration be sufficient; 
and, under this head, what are the requisites of notice 
under the act of 1793? 

2. What acts constitute the offence of harboring or 
concealing under the statute? 

3. Whether the act of 1793 be consistent with the 
provisions of the Ordinance of July 13, 1787? 

4. Whether the act of 1793 be not repugnant to the 
Constitution of the United States? 



ACT OF 1793, A PENAL STATUTE. 13 

I have no doubt that both first and second counts of 
the plaintiff's declaration — the only counts now open to 
investigation — are insufficient. 

It has never been controverted, that the provisions of 
the act of 1793, denouncing the penalty claimed by the 
plaintiff, is penal in its character. The declaration 
charges the defendant with an offence under this act, and 
demands the penalty. It is a penal action under a penal 
statute; and he who seeks a penalty, in addition to the 
damage he has actually sustained, is entitled to no favor 
in a Court of Justice. The act, under which he claims, 
must be strictly construed: and the declaration, by which 
he claims, must present a case within the precise terms 
of the act. No matter what injury may be suffered by 
the claimant of a fugitive servant, in consequence of the 
acts of a third person, if those acts do not make the very 
case described by the law, or if he does not state in his 
declaration, with strict certainty, the facts which make 
that case, he must resort to such remedies as the com- 
mon law, or other provisions afford him. He cannot be 
heard to demand the penalties given by the act. 

It may be said that the act gives a remedy, as well as 
denounces a penalty, and must therefore be construed as 
a remedial law. The answer is, — if it be admitted that 
the last clause of the act is remedial in its character, — 
that the rule is well settled, that where an act is reme- 
dial in one provision and penal in another, that the penal 
provision is to be construed strictly, while the remedial 
provision may be construed liberally.^ And there is no 
case to be found where a provision of an act which im- 

(1) Dwarris on Statutes, 754; Short v. Hubbard, 9 Eng. Com. Law. 431. 



14 PENAL STATUTE TO BE STRICTLY CONSTRUED. 

poses a penalty has been construed otliervvise than strict- 
ly, with whatever other provisions it may stand associa- 
ted. There is no more reason for construing a penal pro- 
vision liberally, because it is preceded or followed by a 
remedial provision, than may be urged for construing a 
penal act liberally, because other acts on the same sub- 
ject matter, in the same statute book, are remedial in 
their nature. 

To array authority on points like tliese may seem vain 
parade; but I deem it my duty, in this case, to risk the 
imputation, rather than hazard, by possibility, the cause 
committed to my defence. 

A penal statute, as defined by Mr. Dwarris, is a legis- 
lative act, "whereby a forfeiture is inflicted for transgress- 
ing the provision therein contained."^ Such a law, we 
are assured by the same author, " must receive a strict 
construction. It cannot be extended by construction. — 
The law does not allow of constructive offences or of 
arbitrary punishments. JVo man incurs a penalty, iin- 
Icss the act, which subjects him to it, is clearly within the 
SPIRIT and THE LETTER of the Statute imposing such pen- 
altyy " If these rules are violated, the fate of accused 
persons is decided by the arbitrary caprice of judges and 
not by the express authority of the laws."- And these 
rules are said to be " of that higher sort of maxims, that 
as re<ful(v, rationales, and not positivce, and the law will 
rather endure a particular offence to escape without punish- 
ment than violate such a rule." ^ These rules, indeed, 
are essential to the very existence of a free government; 
for there can be no substantial freedom, no true security 



(1) Dxoarris, 736, 7. 

(2) Per Best, C. J., Fletcher v. Lord Sondes, 3 Bing. 580. 

(3) Divarris on Statutes, 736. 



CASES OF STRICT CONSTRUCTION. 1 5 

where the citizen is Hable to be deprived, under penal 
laws, of hfe, liberty or property, in any case where the 
offence is not brought, by allegation and proof, strictly 
within the terms used by the Legislature in the definition 
or description of it. 

And these rules have received the fullest sanction from 
the writings of American Jurists and the decisions of 
American Courts. 

"To recover a jjenalty on a statute," says Mr. Dane, 
in his valuable Abridgment of American Law, "the 
express mode, therein named, must be adopted and pur- 
sued, for the statute gives the right, and it is penal, and 
must be strictlij adhered to."^ 

In a case where the statute subjected the "sheriff or 
officer," to whom an execution was ''directed'" to the 
payment of the debt and costs, and thirty per cent, 
damages, for failure to return the writ, and judgment had 
been rendered against a deputy sheriff for such a failure, 
the Court of Appeals of Kentucky reversed the judg- 
ment, on the ground that executions were always ''di- 
rected'' to the "sheriff;' and therefore, a deputy sheriff 
could not be made liable. The Court said, "The act is 
certainly of a highly penal character, and, consequently, 
in deciding upon cases attemjHed to be brought within its 
operation, no liberality of construction ought to he in- 
duhred. Observing a strict construction, therefore, and 
deciding according to the literal import of the act, we 



(1) 5, Dane, 244. ^8:6 Dane. 58R, { 16. I an. happy to find my position con- 
firnied by one of the learned Counsel for the plaintiff in this case. Mr. MoreheAd 
in an able essay published in the Western Law Journal, V. 4, p. HI, says: "I have 
supposed it to be a maxim of universal accceptation, that p^nal statutes shall be 
construed strictly; that is to say, that they shall hav^.'g litkrai. construction; and I 
can perceive no just reason why such a construction .should not be applied to the 
Constitution of the United States, in cases of trials for capital offences." 



16 CASES OF STRICT CONSTRUCTION. 

can have but little hesitation in affirming that the motion 
against the deputy sheriff cannot be sustained.'" 

In a later case, under a statute which prohibited the 
keeping of gaming tables, at which any game of chance 
should be " played for money or any other thing,''^ a 
person was indicted for keeping such a table, at which 
the game of faro was played for "monc?/," and the proof 
was that the money played for was bank notes, and the 
defendant was convicted. The Court of Appeals, how- 
ever, reversed the judgment, on the ground that, in penal 
actions, the charge must be proved as laid, and proof of 
}3lay for hank notes was not proof of play for money. 
The Court said : "Though the betting of bank notes is 
equally illegal^ and would render the defendant liable to 
the same penalty as the betting of money, yet, as the 
'proof must fit the charge laid., the charge was not made 
out in this case.^ 

In another case the same Court reversed a judgment for 
a fine and treble tax, and said: "The proceedings are 
variant from the mode prescribed by the law; which 
being penal must be strictly and literally pursued."^ 

Under a statute of Maryland, any ]:)erson who gives a 
pass, assists by loan or otherwise, the transporting of 
slaves out of the State, or unlawfully otherwise deprives 
a master of his slave, is subjected to a fine, and also to 
a civil suit for damages. Under the penal provision of this 
act, judgment for the penalty was rendered in an inferior 
Court, upon an indictment which contained no allegation 
that the slave was lost to the master in consequence of 



(1) Caldwell V. Holley, 1 A. K. Marsh, 429. 

(2) 2 Statutes of Kentucky, 756. 

(3) Fryer v. Commonwealth, 2 Dana, 298. 

(4) McCall V. Clark County Court, 1 Bibh, .516. 



CASES OF STRICT CONSTRUCTION. 17 

the defendant's acts. The case of the defendant was 
presented to the Court of Appeals by Mr. Chief Justice 
Taney, then at the bar, and the judgment was reversed 
for the omission of the allegation of loss of service.^ 

In Tennessee, forging is defined by statute to be the 
"fraudulent making or alteration of a writing to the preju- 
dice of another's right ;" and it was held by the Supreme 
Court that fraudulently writing a certificate of freedom 
and delivering the same to a slave is not forging within 
that definition ; because such an instrument, being void, 
can prove nothing if offered in evidence, and therefore is 
not to the legal prejudice of a third party. The opinion 
of the court was delivered by Mr. Justice Catron, then 
Chief Justice of Tennessee, who remarked in conclusion, 
"much as we may regret the want of power to punish the 
defendant on this instrument, still we think he is clearly 
not subject to the penalties of felony, and the judgment 
must be arrested."^ 

In Alabama, also, it has been repeatedly held that an 
indictment, framed on a statute, must conform strictly 
to the words of the statute. Where an indictment for 
stealing slaves, omitted the allegation that they were stol- 
en from or out of the possession of the master or overseer 
it was held bad by the Supreme Court.^ It was not 
enough that stealing from the possession of any other 
than the master or overseer wrought the mischief intend- 
ed to be prevented. It was not enough that the words 
" from or out of," might, by a slight accommodation, be 
held to mean in possession or out of possession. The 
court would not inflict a penalty unless the act was with- 
in the terms of the prohibition, nor, of two possible inter- 



(1) 6 Harr. £(■ Johns. 10. (2) State v. Smith, 8 Yerg. 150. 
3) State V. Brown, 4 Port. 412. 



18 PENAL STATUTES TO BE STRICTLY CONSTRUED. 

pretations, adopt tliat which would operate most strin- 
gently against the accused. In another case, upon the 
same principles, the same court held that an indictment 
for stealing a slave could not be supported by proof that 
the defendant aided the slave to escape.^ 

And this court has declared that " the rule that penal 
lavi^s are to be construed strictly is pehaps not much less 
old than construction itself. It is founded on the tender- 
ness of the law for the rights of individuals ; and on the 
plain principle that the power of punishment is vested in 
the legislative, not in the judicial department. It is the 
Legislature not the Court which is to define a crime and 
ordain its punishment."^ 

And not only is it universally true that penal laws shall 
be construed strictly, and shall not be extended by con- 
struction, and that, in penal actions, the declaration must 
follow the statute and state a case precisely within its 
terms; but in every such action the declaration must aver 
that the offence alleged w as committed contra Jormam 
statuti^ or against the provisions of the statute. The au- 
thorities to this point are full and inflexible.^ 

It is no small satisfaction to me to find that the rule in 
relation to penal statutes, and declarations in penal ac- 
tions, which I have endeavored to establish has been ap- 
plied in the construction of the very statute now under 
consideration, in an action for same penalty which the 
plaintiff in this case seeks to recover. In the case of Sim- 
mons^ Exparte^^ Mr. Justice Washington declared that the 
constitution and the kuv relating to fugitives from service 
are not susceptible of a construction, broader than the lan- 



(1) 8 Port, 412. (2) United States v. WiUberger, 4 Pet. Cond. Rep. 569 

(3) Chitty on Plead. 404, 5, 6; 1 Gnllison's Rep. 259 <^ 265, 6. 

(4) 4 tVash. 397. 



CONSTRUCTION OF ACT OF 1793 BY JUDGE WASHINGTON. 19 

guage used. And in the (mse of Hill v. Low^^ which 
came before him on writ of error, prosecuted to reverse 
a judgment given for the penalty imposed by the act of 
1793, the same learned judge held that obstruction, hin- 
drance, or interruption, is no offence under the act of Con- 
gress unless it be interposed previous to or whilst the 
claimant or his agent is in the act of seizing or arrest- 
ing the fugitive, or is endeavoring to make such sei- 
zure. After the arrest is consummated, "no subsequent 
obstruction, whilst the custody continues, although it 
should afford an opportunity for an escape or be a re- 
straint upon the free will of the claimant, can constitute 
the offence of obstruction, or hindrance mentioned in the 
fourth section of the act." So, exciting or advising a 
person, arrested as a fugitive from service, to fly, if no 
actual force or intimidation be employed to deliver him 
from custody, cannot constitute a rescue. But obstruc- 
tion or hindrance, of the claimant or his agent, with 
force or by intimidation, for the purpose of enabling the 
fugitive to escape, in consequence of which the fugitive 
does escape, is a rescue. So all interposition or resist- 
ance to the claimant or his agents in attempting to re- 
capture the fugitive after the original arrest and an es- 
cape is an obstruction or hindrance. 

The reason for these distinctions is plain. Obstruction 
or hindrance of the claimant or his agent, in seizing the 
fugitive, is within the terms of the act. Obstruction or 
hindrance of the claimant in holding the fugitive, after 
seizure, is not within the terms of the act, and cannot be 
brought within them except by construction, which cannot 
be allowed. The obstruction or hindrance last described, 
if it be intended to aid and actually causes the escape of 



(1)4 JVash. 328. 



20 CONSTRUCTION OF ACT OF 1793 BY JUDGE WASHINGTON. 

the fugitive, will amount to a rescue ; but if the claimant 
wishes to recover the penalty imposed by the act in such 
a case, he must, in his declaration, state a case of 
rescue, and not a case of obstruction or hindrance. Ex- 
citing or advising a slave to fly after arrest, is not a 
rescue ; because a rescue is " a forcible setting at lib- 
erty;"^ and there can be no rescue without force. Ex- 
citing or advising flight, therefore, though of precisely the 
same mischief as rescue, will not subject the offending 
party to the penalty of the act, but the party injured 
must be left to his action for damages. 

The same rule is applied by the same learned judge - 
in determining what fugitives are described by the 
Constitution and the law. He says, the act of Congress 
" relates to fugitives from one State to another. The 
words of the law are 'when any person held to labor in 
any of the United States * * under any of the laws 
thereof, shall escape into any other of the said States, * * 
the claimant or his agent may seize such fugitive from 
labor,"* and upon proof, * * that the person so seized 
under the laws of the vState 'from which he fed'' owes 
service, * * it is made the duty of the judge to grant 
the certificate. The second section of the fourth article 
of the Constitution of the United States is confined to 
persons held to service or labor in one State under the 
laws thereof, escaping into another."" 

The persons entitled to exercise the right of recapture, 
are described with no less precision by the Constitution 
and the law ; and it is equally inadmissible to extend that 
right by construction to any other persons than those 
thus described. " The party to whom such labor or ser- 
vice may be due," is the description of the Constitution. 

(1) 1 Russ. on Crimes, 338. (2) Simmons, Ex parte, 4 JVaih. 392. 



PROPOSITIONS ESTABLISHED. 21 

" The person to whom such labor or service may be due, 
his agent or attorney," is the description of the law. 
Accordingly Mr. Chief Justice Taney, speaking of the 
act of Congress, in the Prigg case, said, "By that law 
the power to seize is given to no one, but the owner, his 
agent or attorney."^ 

May I not now safely claim the following points as 
firmly estabhshed? 

1. That the provision of the act of 1793, imposing a 
penalty for certain offences is a penal law. 

2. That a statute imposing a penalty must be strictly 
construed, and can never be extended by construction so 
as to embrace any other offences, than those precisely 
described in it. 

3. That a declaration under such a statute, must state 
the offence, if not in the very language of the statute, 
yet in terms which describe the offence with complete- 
ness and precision. 

4. That a declaration under such a statute must aver 
in terms, that the offence was committed contra formam 
statufi, or against the provisions of the statute, before 
the plaintiff can claim that an action has accrued to him 
for the penalty. 

Let the declaration in the record be examined by these 
tests. What is essential to such a declaration is quite 
plain. It must state a case which entitles the plaintiff to 
the penalty imposed by the act upon the harborer of the 
fugitive from service. It must state, then, that a person 
held to service or labor by the plaintiff in Kentucky, un- 
der the laws thereof, has escaped into Ohio. The per- 
son escaping must be named, or sufficiently described; 

(1) \6 Peters, (332. 



22 WHAT THE DECLARATION SHOULD CONTAL\. 

for the plaintiff necessarily knows what servant has es- 
caped, and the defendant has a right to be fully advised 
of the charge he is to answer, and he cannot be so ad- 
vised unless the declaration name or describe the fugitive 
whom he is alleged to have harbored. The declaration 
must allege, also, that the defendant harbored the fugitive 
after notice that he had been held to service or labor in 
the State of Kentucky under the laws thereof, and had 
escaped thence into the State of Ohio. 

Do the averments of the plaintiff's declaration satisfy 
these requisitions? Let us examine it. 

The Court will not fail to notice, that the declaration 
is not drawn in conformity with any approved precedent 
of a declaration in debt for a penalty. The whole state- 
ment of both counts is taken, with slight modifications, 
from a form in Chitty for a declaration in case for dam- 
ages occasioned to the plaintiff by harboring the plain- 
tiff's servant.^ The conclusion, which is wholly informal, 
seems to have been intended by the pleader, as a con- 
clusion in debt. Not much accuracy is to be expected 
in a declaration so framed, and not much is to be found. 

The first count commences by stating, that a certain 
person, to wit, "Andrew, aged about thirty years, Letta, 
aged about thirty years, was the slave * * of the plain- 
tiff," &c. There is nothing to show to which of these 
two persons, Andrew or Letta, the allegation of escape 
is intended to apply. It is, obviously, not intended to ap- 
ply to both, for it refers only to a single person. If ap- 
plied to one or the other, in the alternative, the count is 
then clearly bad for uncertainty; and if it be left unde- 
termined to which of the two it properly applies, then 

(1) 2 Chitty on Plead. 646. 



DECLARATION DEFECTIVE: NO ESCAPE AVERRED. 23 

the count is, also, bad for the same reason. It may be 
held, that this uncertainty is cured by the verdict which 
has been rendered in this case, and I refer to it mainly 
for the purpose of directing attention to the carelessness 
with which the declaration is drawn. 

The next objection to the first count is, I must think, 
fatal. After alleging that the fugitive, " at Boone Coun- 
ty, in the state of Kentucky, * * ow^ed service and was 
held to labor to the plaintiff by the laws of the State of 
Kentucky," the count proceeds thus: "unlawfully, wrong- 
fully, * * without the hcence or consent, and against the 
will of the plaintiff', departed and went away from and 
out of the service of the plaintiff of said Boone County, 
and came to the defendant at Hamilton County, in the 
State and District of Ohio." The object of the allega- 
tion, it would seem, was to state that the servant escaped 
from the plaintiff to the defendant^ and the county of the 
plaintiff, and the county and state of the defendant, are 
mentioned only as their respective places of residence. 
But has the pleader, in fact, although accidentally, stated 
an escape within the meaning of the act of Congress? 
The clause of the constitution relating to fugitives fromp 
service, — and the act cannot enlarge, and does not pro- 
fess to enlarge, the constitution, — is ''''confined to persons- 
held to service or labor in one state and escaping to an- 
other." ^ The constitution and the law apply, and were 
intended to apply, to this single class of persons only. 
Does this declaration, then, aver that the servant in ques- 
tion escaped from the state in which he was held to 

service into another state. The allegation is, that " 

departed and went away," — and I will admit that these 

(1) Per Washington, J., 4 Wash. 396. 



24 DECLARATION DEFECTIVE; NO ESCAPE AVERRED. 

words as used in the declaration may be considered 
as equivalent, in import, to the word escaped, — -from the 
service of the plaintiff of said Boone County, and came 
to the defendant at Hamilton County in the vState of 
Ohio." There is no allegation, even, that any body es- 
caped, for the verbs "'departed and went away," have 
no nominative. But admit — what can be admitted no 
otherwise than for the sake of argument, — that a nomi- 
native may be supplied by intendment, it remains clear 
that every fact alleged may be truly stated, and yet no 
escape such as the constitution and the law contemplate, 
may have taken place. 

Under what law was the fugitive held? A certain 
person, it is alleged, was the slave of the plaintiff at 
Boone County in the state of Kentucky, and owed ser- 
vice to the plaintiff by the laws of Kentucky, not of the 
state of Kentucky, but of Kentucky. And let me ask, 
if this allegation respected New York, would it be held 
sufficient, when the word New York might be taken to 
describe the city as well as the state? And if not, can 
the allegation in the count before us be held sufficient? 
May it not be true, and yet may not the servant have 
been held under other laws than those of the state of 
Kentucky? 

But, dismissing this point, let me present a more seri- 
ous one. Certainly the allegation that the servant de- 
parted from his master's service without his consent, and 
came to the defendant in Ohio, is not an averment of 
the escape contemplated by this act. This allegation 
may be true, and yet the master, though o/* Boone Coun- 
ty, may have been in Ohio, with the servant, at the time 
of the escape ; or the servant may have departed from 
his service in Boone County without his consent, and af- 



NO PROPER AVERMENT OF ESCAPE. 2.'3 

terwards may have been licenced to come into Ohio. 

And, if this be so, this count in the declaration states 
no title to the penalty. 

It will not do to say, that the language used may be 
applied, by a liberal construction, to the case of an es- 
cape from the state of Kentucky into the state of Ohio. 
We have nothing to do with liberal construction in penal 
actions. The numerous authorities I have already cited 
establish beyond a question, that the law will not endure 
a liberal construction in ftivor of him who claims a pen- 
alty. He must state and prove the precise case in which 
the law inflicts the penalty, or he cannot recover it by 
the judgment of a court.^ 

The plaintiff, in this case, is bound to aver and prove, 
that the alleged fugitive was held to service or labor in 
the state of Kentucky under the laws thereof, and es- 
caped from that state into Ohio. Has he averred such' 
an escape? Is departing and going away from a citizen 
of Boone County in Kentucky, and subsequently coming 
to a man in Ohio, necessarily an escape from the state 
of Kentucky into the state of Ohio? May not both 
these facts exist, in a great variety of cases, in which 
there is no escape from one state into the other? If to 
escape from one state into another were an offence, ])un- 
ishable by indictment, could an indictment, couclied in 
the terms used in this declaration, be sustained for a mo- 
ment? These questions, it seems to me, admit of but 
one answer. No proposition is clearer, to my mind, than 
that whatever else this declaration may assert, it con- 
tains no averment of an escape from the state of Ken- 
tucky into the state of Ohio. 



9 
(1) It seems idle to cite further authorities, but McKeon v. Lane, 1 Hall, JV. 1',- 
318, and Bigelow v, Johnson, IfiJohn. 438, are rases in point. 

D 



26 DEFECTIVE TITLE NOT AIDED BY VERDICT. 

It is urged in the printed firgiiment for the plaintiff, 
that, after verdict, it will be presumed that the facts ne- 
cessary to obtain it, although not specifically alleged, 
were proved, and the declaration will be sustained. — 
But there is no such rule as this, and none such can ever 
be established. An omission to state facts, which are 
implied in,, or inferrible from^ the facts averred and 
found, will be aided l)y the verdict: because the verdict 
establishes the truth of the facts averred, and the truth 
of the facts not averred is a necessary inference from 
the truth of the facts found. But proof of facts, not ne- 
cessarily implied by the facts stated, will not be pre- 
sumed. The rule is laid down with precision, by Buller, 
J., in Speirs v. Parker:^ ''After verdict nothing is to be 
presumed but what is expressly stated in the declaration, 
or what is necessarily imphed from the facts which are 
stated." The question in Speirs v. Parker, hke that now 
under consideration, arose after verdict in an action of 
debt for penalties. The ground of the motion in arrest 
was, that the declaration did not sufficiently negative 
an exception in the act giving the penalty. The opin- 
ion of the whole court was, that the plaintiff, having in- 
sufficiently negatived the exception, had failed to aver 
a title to the penalty, and judgment was arrested. The 
same rule has been frequently applied in other cases," 
and is very ably stated and illustrated by Mr. Gould, in 
his work on Pleading.^ And this Court has also recog- 



(1) 1 T.B. 146. 

(2) Rvshion v. Aspinnll, 2 Dong. 683; Bnrtlett v. Crozier, 17 .7. R. 453; Wil- 
liams \. Hingham. 4 Pick 344, which contains a very clear and able statement and 
applicaMon of the rule; Bishop v. Hayiuard, A T.R.AIX. In the last case. Lord 
Kenyon says: " It is an invariable rule that every plaintiff must, on his own stating 
of the case, show sufficient to entitle him to recover judgment against the de- 
fendant." • 

(3) Gould on Pleading, 503. 



DEFECTIVE TITLE NOT AIDED BY VERDICT. 27 

nized the rule, and applied it to a case of a defective 
plea. "Defects in substance are not cured by verdict, 
'for this,' says Bacon, 'would have ruined all proceed- 
ings in courts of justice,' and a defect in substance, 
in a plea or verdict, is conceded in all the books to exist 
when they do not cover whatever is essential to the gist 
of the action."^ 

In the case before the Court the declaration avers 
certain facts. The issue is not guilty. Of what? — 
Doubtless, of the facts charged. The issue cannot be 
broader than the charge, and if no offence be charged, 
there can be no penalty. The verdict is '•''guilty.'''' Of 
what? Of harboring and concealing certain persons 
alleged to have been held to service by the laws of Ken- 
tucky, who, without consent, departed from the service 
of the plaintiff of Boone County, and, afterwards, came 
to the defendant in Ohio. These facts, I have already 
shown, do not make the case of escape defined by the 
constitution and the act of Congress: for they may all 
be true and yet no escape have taken place from one 
state into another. Nor can the necessary averment 
be supplied by intendment. This would not be al- 
lowed in an ordinary action, much less in an action for 
a penalty. With great deference, then, I submit that 
the position that the first count of the declaration in 
respect to the averment of escape is fatally defective, 
is fully established. 

The second count is equally defective in the same par- 
ticular. The allegation of escape is exactly the same 
in both counts, except that in the second instead of aver- 
ing, as in the first count, that the servant "went away 
from the service of the plaintiff of said Boone County," 



(1) Garland v. Davis, 4 HoWy 1S5.. 



28 NO PROPER AVERMENT OF NOTICE. 

the pleader states that the servant " went away from the 
plaintiff's service, to wit, at Boone County aforesaid." 
The allegation is of escape from the plaintiff's service, 
and his residence is laid under a videlicet, so that if the 
proof should sliow that he resided in some other county, 
there would he no variance. There is no allegation of es- 
cape from the state. And, I repeat, that a declaration 
upon a penal statute must describe, with strict certainty, 
sufficient facts to constitute the offence;^ and of these 
facts, in this case, an escape from the state of Kentucky 
into the state of Ohio, is one that cannot be dispensed 
with. 

I submit, further, that the first count in the declara- 
tion contains no sufficient averment of notice to the de- 
fendant, that the person harbored was held to labor in 
the State of Kentucky, under the laws thereof, and had 
escaped from that State into Ohio. The averment is, 
that " the defendant, well knowing that said Andrew 
w^as the slave of the plaintiff, and a fugitive from labor, 
afterwards * *' did, knowingly and willingly, harbor, 
detain, conceal and keep the said slave." The act of 
Congress provides that "any person who shall knowinghj 
and wUlingly * * * harbor or conceal such person, after 
notice that he or she was a fugitive from labor as afore- 
said, shall, * * forfeit and pay the sum of five hundred 
dollars." 

The question is, does the declaration aver that the 
defendant " after notice " that the servant "was a fugitive 
from labor as aforesaid,^' harbored or concealed him ? 



(1) Fairbanks v. Antrim, 2 JV. H. 105. Mr. Justice Woodbury, in this case, held 
" the strictest certainty." The Court seems to have been disposed to relax the rule 
as to the construction of statutes, but upheld it fully as to declarations for penalties. 



KNOWLEDGE OR BELIEF NOT NOTICE. 29 

That no such averment is made in terms is certain ; 
but if the declaration makes the averment in words of the 
same import, it will be sufficient. Are the terms of the 
declaration of the same import as the words of the 
law? 

1. Is knowledge, or belief, notice ? 

2. Is notice that the person harbored is 'a slave, and 
a fugitive from labor,' equivalent to notice that he was 
held to labor under the laws of a state, and has es- 
caped from that state into the state where he is harbored? 

The learned judge who presided at the trial of this 
case, in the Circuit Court, expressed the opinion, in the 
case for damages between the same parties, that " the 
law of notice most appropriate to the case in hand," is 
that " which applies to a purchaser of real estate for a 
valuable consideration with notice." Whatever may be 
said as to the correctness of this opinion, as apphed to 
an action for damages — and I cannot but think that the 
error of it even when so applied, will be apparent upon 
reconsideration — can there be a doubt that, in an action 
for the penalty, a very different notice from that which 
will affect a purchaser, must be averred and proved? 
The learned judge cites, in support of his view, the 
language of Mr. Justice Story, in a case reported by 
Gallison. "It is a general rule, that whatever is suffi- 
cient to put the parties upon inquiry is good notice ;" * * 
and "notice of the facts" is "notice of the legal con- 
sequences flowing from the facts."^ Judge Story 
referred to the notice necessary to charge a purchaser 
with knowledge of prior rights, and, in that case, a sale 
was set aside in favor of a party having a prior right, be- 
en Brig Ploughboy, I Gall. 42. 



30 KNOWLEDGE OR BELIEF NOT NOTICE. 

cause the circumstances were such as would put a pru- 
dent man upon enquiry. But to apply such a rule in 
the construction of a penal statute, and to say that 
whatever is sufficient to put a party upon enquiry is such 
notice as the act requires, in order to charge him with 
a penalty, seems to me wholly unreasonable and inde- 
fensible. 

The act of Congress plainly contemplates a very 
different kind of notice. In fact, the words "after 
notice" are wholly superfluous, upon the hypothesis that 
notice is knowledge. The act provides that if any 
person shall knowingly and willingly harbor or conceal 
such person, after notice^ &c. Erase the words "after 
notice," and is not knowledge still essential to the 
offence of harboring? Must not the claimant of the 
penalty, before he can entitle himself to a recovery, aver 
and prove that the harborer knew that the person 
harbored was a fugitive from labor, who had been held 
to service in one state under its laws, and had escaped 
into another? The words '•^knowingly and willingly'''* 
quahfy the words '•'- harbor or conceal,'''' as much as they 
do the words '-'obstruct or hinder,''"' or the word ''•rescue;''^ 
and the words ''such person" mean such a fugitive 
servant as is described in the preceding section of the 
act. I think there can be no doubt as to this. If then 
the act had never contained the words "after notice," 
&c.,the averment of knowledge would, nevertheless, have 
been necessary. Let it be supposed that the act did 
not originally contain these words, and that they were 
subsequently introduced by amendment, can it be 
maintained that the introduction of them would have 
had no effect upon the construction of the act? If, 
then, these words are not merely tautological, they must 
mean something different from knowledge. 



KNOWLEDGE OR BELIEF NOT NOTICE. 31 

But it may be argued that the words "knowingly and 
wilhngly" do not quahfy the words ''harbor or conceal." 
Let this be granted for the sake of the argument. These 
words, however, do qualify the terms "obstruct or hin- 
der." Whatever else may be controverted, this cannot be. 
Why, then, are the words "after notice" used to (quality 
the act of harboring, while the words "knowingly and 
willingly are employed to qualify the act of obstruction? 
The difference in language marks the difference of 
sense. The Legislature did not intend that mere receiv- 
ing or sheltering a fugitive servant, should subject the 
citizen to a penalty, without actual notice from the 
claimant, or some one acting for him, that the person 
so received, was such a fugitive as is described in the 
constitution and the law. Such, certainly is the plain 
obvious meaning of the language used; and I cannot 
think that this court, in order to bring a case within the 
provisions of a penal statute, will apply to the statute 
the enlarged rules, as to notice, which prevail in courts 
of equity. 

Nor can I be persuaded that the Legislature intended 
words " after notice," as the mere equivalent of " know- 
ing." The whole object of the statute is to provideybr the 
enforcement of claims^ to the persons of fugitive servants. 
It supposes, first, the case of an escape, and defines it 
with rigorous precision. It then brings forward the claim- 
ant ; authorizes the seisure ; and provides for the enforce- 
ment of the claim. It next provides penalties against 
those who do certain acts in prejudice of the claim so 
made. Throughout, it supposes a claim, and a claimant 
or his agent, prosecuting it. When the claimant is at 
hand, seizing or endeav^oring to seize the fugitive, know- 
ingly and willingly obstructing or hindering the arrest, or 
rescuing the servant, after the requisite notice, will subject 



32 KNOWLEDGE OR BELIEF NOT NOTICE. 

the obstructors or rescuers to the penaky. But harboring 
or conceahiient is a distinct offence. It is supposed to be 
committed always under circumstances, which do not 
amount to obstruction or hindrance. It cannot be com- 
mitted, unless there be a fugitive; nor, unless there 
be a claimant. Tiiere must be a subject of the act, 
answering the description of the law, and the act 
must be to the prejudice of an asserted right. He 
does not commit the offence intended by the act, 
who receives into his house, and employs in his ser- 
vice a fugitive servant, whom his master does not re- 
claim, and has no thought of reclaiming; although, he 
may know the man to be an escaping servant, within the 
description of the law. Harboring or concealment only 
becomes unlawful, after notice, — whether by writing or 
verbally, or by newspaper publication, or in any similar 
mode, it matters not — and this notice must be information 
communicated, in some way, by the claimant or some 
one for him, to the party to be charged. After such notice 
the harboring will become unlawful, though the claim- 
ant may not be in immediate pursuit of the servant. 

The act, it seems to me, contemplates a claim and a 
claimant, throughout; and to provide in the fourth section 
for three distinct classes of injuries, under three distinct 
sets of circumstances. 

1. Where the claimant in person, or by his agent, is 
in pursuit of a fugitive servant, answering the descrip- 
tion in the act, and any person, knowingly and willingly, 
whether by harboring, concealment, resistance or other- 
wise, undertakes to prevent the arrest, after the notice 
required by the act ; this is obstruction or hindrance. 

2. Where the claimant has arrested such servant and 
any person, knowingly and willingly, and with force, sets 
him at libertv, after such notice: this is rescue. 



KNOWLEDGE OK BELIEF NOT NOTICE. 33 

3. When any person, having received or not having 
received such a servant into his employment, or having 
given or not having given him sheker and entertainment, 
knowingly and willingly, fraudulently conceals him, 
after such notice: this is harboring or concealment. 

In each case the act must be knowingly and willingly 
done, and it must be done also after notice. In the case 
of obstruction or hindrance, and in the case of rescue, 
notice is easily given, for the claimant or his agent is on 
the spot. In the case of harboring or concealment, the 
claimant or his agent may or may not be in pursuit; but 
the offence cannot be complete until after notice. 

It may be said that the words "after notice" have no 
connection with "obstruct or hinder" or with "rescue." 
I think the true construction of the act is otherwise ; but 
I am willing to accept the construction suggested. It 
makes the defendant's case still stronger. It asserts, in 
fact, that while knowledge and purpose are sufficient to 
constitute the first two offences, notice, as distinguished 
from knowledge, is essential to complete the third. 

I have defined harboring as fraudulent concealment, 
because this seems to me the probable sense in which 
the Legislature used the word. To me the words "har- 
bor or conceal" seem to be used in the act as equivalent 
terms, descriptive of the same offence: just as the words 
"obstruct or hinder," "seize or arrest," "agent or attor- 
ney" are used, not to convey different ideas, but make 
the meaning of the legislature more distinct. 

And the definition of harboring as given in the books 
sanctions mine. The Supreme Court of North Carolina 
has declared harboring to be "fraudulent concealment."^ 
Under the statute of that state, employing or maintain- 

(1) Dark v. Marsh, 2 JV*. C. Law Rep. 249. 
E 



34 KNOWLEDGE OR BELIEF NOT NOTICE. 

ing openly is not harboring. And Mr. Bouvier in his 
Law Dictionary. — I do not find the word in Cowel, or 
Jacob, or Tomhns, — says: "To harbor is to receive, 
clandestinely and without lawful authority, a person, for 
the purpose of concealing him so that another, having 
the right to the lawful custody of such person, shall be 
deprived of the same."^ 

But it is unimportant to this argument whether harbor- 
ing and concealment be considered as the same offence, 
or as two distinct offences. It is equally unimportant 
whether the harboring be fraudulent concealment, or 
simple sheltering, entertaining or lodging. 

In whatever sense the word be taken, actual notice is 
equally essential; and it must be the precise notice 
which the statute requires. Before, or during the har- 
boring or concealment, the party to be charged under 
the act must be notified by the claimant, or some one 
acting for him, that the person claimed is a fugitive 
within its description. The offence of harboring, how- 
ever defined, — and with this offence alone am I, in this 
argument, concerned, — cannot be complete until after 
notice. 

Even at common law, according to the latest authority, 
no action will lie for harboring the servant of another, 
until after notice, that he is such servant, accompanied 
by a demand for restoration, or at least, some assertion 
of the prior right. Mr. Chitty states the law thus: "In 
case an apprentice or servant, or a mere journeyman 
hired for an unexpired term, or to complete some unfin- 
ished work, absents himself, then, to fix any third person 
with liability to an action for continuing to harbor him, 

(1) 1 Bouvier, 460. 



KNOWLEDGE OR BELIEF NOT NOTICE. 35 

he must receive a general or particular notice of the 
circumstances. For although, if he took, or enticed the 
party away, he would be immediately liable to an action 
without previous notice ; yet a notice must precede any 
suit, for merely detaining or harboring."^ The same 
author, in another part of his work, speaking of the har- 
boring of an apprentice or servant, says: "it will be 
necessary to be prepared to prove a formal demand of 
restoration before an action can be sustained, and that 
it has been so made as to constitute the party a wilful 
wrong doer, unless the ])laititiff can prove an original 
enticing away."^ Mr. Starkie, also lays down, the same 
rule.^ I am aware that these rules have not always 
been applied to actions at common law, but I submit 
that they are entirely reasonable and just and fit, espe- 
cially in a country like ours, to be so applied in all cases. 
The law should never presume against liberty. It should 
never presume an intention on the part of the master to 
pursue and reclaim an escaping servant. It should never 
presume an act of humanity or charity to be an offence. 
But, however this may be at common law, can there 
be a reasonable doubt, that such must be the rule, under 
the act of 1793? That act is not only in derogation of 
the common law, but it is, also, intended to enable the 
claimant to enforce a right created by the law of his 
state, extra-territorially, in states, where that right can- 
not exist, except as an abridgement of their sover- 
eignty and fundamental law, and in virtue of the constitu- 
tion and the act. There is, therefore, far more reason for 
requiring notice, from the claimant to the party to be 
charged, under this act, than in a case at common law; 
and it seems to me, that the reasons I have adduced, es- 

(1) 1 Chitty's Gen. Prar. 449, (2) Td. 465, (3) 3 Starkie on Ev. 1310. 



36 KNOWLEDGE OR BELIEF NOT NOTICE. 

tablish, beyond reasonable question, that it was the 
intention of the Legislature to require such notice. 

It is pertinent to add, that in many cases, the masters 
of servants, and especially of slaves, never set up any 
claim to them, if they escape. Every one, at all ac- 
quainted in the slave states, knows such masters. It 
will be hardly contended, that receiving, employing, 
sheltering or entertaining escaping servants, not pursued 
and not claimed, is a penal offence ; and the fact that 
there are many such cases of escape, strongly confirms 
the view I have submitted, as to the sense in which the 
words '-after notice" are used in the act. 

It may be said, that, upon this construction of the 
act, the right of masters to reclaim their escaping ser- 
vants may be invaded by acts, which will not subject the 
doers of them to any penalty. This may be admitted: 
but the terms of tlie act must not be extended, and pen- 
alties multipUed, by construction. For all injuries, not de- 
fined by the act, parties must be left to the redress afibrded 
by the common lav/. Thus Judge Washington held, that 
interference and opposhion, however vexatious and har- 
rassing, after seizure and while the servant was in custody, 
was not obstruction or hindrance, and that mere enticing 
ur persuading the servant, after seizure, to escape was not 
a rescue, within the terms of the law. The party injur- 
ed by such acts, must resort to his action for damages: 
he could not claim the statute penalties. So the Su- 
preme Court of Alabama held, that enticing a slave to 
escape was not stealing the slave. All these acts work 
the same injury to the legal rights of the master as the 
acts prohibited under penalties: but they are not the 
same acts, and, therefore, the doers of them do not incur 
the penalties. Let the principles, illustrated by these ex- 



KNOWLEDGE OR BELIEF NOT NOTICE. 37 

amples, be applied to the case before the Coiiit, and can 
there be a reasonable doubt, that the words "after no- 
tice," used in the law, refer to a state of facts which is 
not described by the words "well knowing," as used in 
the declaration. 

I do not insist that the notice shall be written: but I 
do insist that notice must be given — and given by the 
claimant, or some one acting, for him. Notice to an en- 
dorser of demand and non-payment need not be in wri- 
ting: but notice must be given by the holder, or some one 
for him. Knowledge of demand and non-payment is not 
enough; there must be notice from the party who asserts 
the right. And this example seems to me to furnish a 
clear illustration of the principle. In both cases the ob- 
ject is to fix a legal liability, which would not exist 
without the notice. The only difference is, that the ha- 
bility in the one case is for a penalty, and in the other 
for a debt. 

I close this part of the argument with a single ques- 
tion ; — Is there one case, in any book, in which a requisi- 
tion of notice to charge a party with liability for a pen- 
alty, or even for a money demand of any kind, has been 
held to be satisfied by proof that the defendant knew the 
facts, of which he was to be notified?-^ 



(1) I ask attention to ihe following passages, which I extract from an essay, drawn 
up after the trial iu the Circuit Court, by an able and learned lawyer, in no way con- 
nected with the case, and having no sympathy with the views of abolitionists. 

•' That the words knowledge and notice are synonymous in law, no tyro will pre- 
tend. Lawyers are too familiar with notices, ever to suppose that notice means 
knowledge. Putting a deed on record is notice to all the world, though not one in a 
million knows the fact. As notice then does not mean knowledge, neither does 
knowledge mean notice: a man may know a thousand things of which he has had no 
notice. 1 say, then, that no man, who speaks or writes the English language with 
any degree of accuracy, ever uses the words knowledge and notice as synonymous. 
]No example can be found in anj' of our classical writers where they have been so 
used; and there is no ground for supposing that Congress meant to use the word no- 



38 OF WHAT THE PARTY MUST BE NOTIFIED. 

Tlie next and only remaining question as to notice is, 
Of what does the statute require the party to be notified? 
And, as to this, I apprehend there can be but httle doubt. 
The terms of tiie act are so clear that misapprehension 
is almost impossible. The language is this: "Any per- 
son who shall * * harbor or conceal such persoti after 
notice that he or she was a fugitive from labor as afore- 
said^ shall forfeit," kc. The words "as aforesaid," refer, 
beyond question, to the description, in the preceding sec- 
tion, of escaping servants, subject to reclamation. That 
description is clear and precise. The words are these: 
"A person held to labor in any of the United States un- 
der the laws thereof, who shall escape into any other of 
said States." The fourth section, then, must be con- 
strued as if it read thus: "Any person who shall * * * 
harbor or conceal such person after notice that he or she 
was held to service in one of the United States under 
the laws thereof, and has escaped into another of said 
States, shall forfeit and pay," &c. I think there cannot 
be any doubt of this. 

The simple question then is. Does the declaration aver 
that the defendant had notice that the person harbored 
was held to service in one state, under its laws, and had 



tice as synonymous with knowledge. On the contrary, there is strong reason to 
believe that Congress meant to use the word notice in its ordinary acceptation — 
meant, that before a person could be subjected to the penalties of this act, he should 
have notice given him in the ordinary mode that the person was a fugitive from labor, 
and that his master intended to reclaim him. * » , * 

It is a notorious fact, that there are a great many masters who will not move a fin- 
ger to reclaim a runawaj- slave. They will not cmply with the requisitions of the 
statute by giving notice, even though they know that they can recover their slaves 
by doing so. * * There are at this moment, more than ten thousand slaves in the 
state of Kentucky, to whom, if thev were to runaway, their masters would bid God- 
speed, and never lift a finger to reclaim them. They cannot let them go, for that 
would be contrary to the laws of their state. They cannot, with a clear conscience 
manumit them, because they are incapable of taking care of themselves. But if 
they go, they will feel themselves relieved from a heavy burthen." — 2 West. Law 
Jour. 247. 



OBJECT OF THE CONSTITUTION AND LAW. 39 

escaped into another? Or, is there any averment in the 
declaration of the same import? The actual averment 
has been already stated. It is that the defendant well 
knew "that Andrew was the slave of the plaintiff and 
a fugitive from labor." Does it need argument to show 
that this averment is insufficient? 

The language of the act of Congress is adopted from 
the Ck)nstitution. Every word of the clause in the Con- 
stitution was carefully weighed, and deliberately chosen, 
to define, with rigorous precision, the exact limits of the 
exception to the universal rule of freedom, which the 
framers of that instrument consented to introduce into 
it. The object of the clause was to secure, to a certain 
extent, the legal rights of slaveholders, by hmiting the 
operation of the principles of liberty, which pervaded 
the constitutions and laws of many states, in a certain 
specified class of cases. To avoid all recognition of 
the rightfulness of slaveholding, the provision was made 
applicable to all servants held under state laws. To 
prevent all possibihty that, under its sanction, slave- 
holders might introduce their slaves into the states 
which did not tolerate slaveholding, it was confined 
expressly to servants escaping from the state in which 
they were held, into another state. And to preclude, as 
far as possible, all interference with the principles and 
institutions of the several states, the prohibition of dis- 
charge from labor and service w^as hmited to '•"such labor 
and service" — that is, to that labor and service, to 
which the servant was held by the laws of the state, 
from which he escaped. The clause w^as felt to be a 
great concession on the part of the fiee states ; although 
it was not one of the disputed clauses, nor did it originate 
in any of the compromises of the convention. It was. 



40 PROCEEDINGS OF CONSTITUTIONAL CONVENTION. 

not contained in the articles of the Constitution as drawn 
up by the Committee on Detail. It was not even sug- 
gested, until late in the session of the Convention, when 
a clause to the effect that "fugitive slaves and servants," 
should be "delivered up like criminals," was proposed 
by the delegates from South Carolina.^ This, however, met 
with no favor, and was witlidrawn. 

Subsequently a clause, nearly the same as that which 
now stands in the constitution, was proposed, and re- 
ceived the unanimous assent of the convention. At a 
still later period, the clause underwent further mod- 
ifications; the great object of which was to exclude 
from the Constitution the idea of a sanction to slave- 
holding, and to make the provision express the pre- 
cise sense of the convention as to the matter of esca- 
ping servants.^ 



(1) 3 Mad. Papers, 1447. 

(2) The clause as orig-inall}' agreed to was as as follows: "If any person bound to 
service or labor in any of the United States, shall escape to another state, he or she 
shall not be discharged from such service or labor, in consequence of any regulations 
subsisting in the state to which they escape, but shall be delivered up to the person 
justly claiming their service or labor. 3 Mad. Pap. 1456. 

This clause, with all others then agreed on, were referred to a committee, 3 Mad. 
Pap. 1532, who reported a draft of the Constitution, which contained the clause niod- 
fied as follows: 

" No person legally held to service in one state escaping into another, shall, in 
consequence of regulations subsisting therein be discharged from such service or 
labor; but shall be delivered up on claim of the party to whom such service or labor 
may be due." 3 Mad. Pap. 1558. 

Afterwards, Mr. Madison says, " On motion of Mr. Randolph, the word ' servi- 
tude 'was stricken out, and the word 'service' unanimously inserted, the former 
being thought to express the condition of slaves, and the latter the obligation of 
free persons." 3 Mad. Pap. 1569. 

From this it seems that, in the clause as proposed by Mr. Butler, and as reported, 
after modification, by the committee, the word " servitude" was originally employed 
and not "service." The reason assigned for the after change, on motion of Mr. 
Randolph, suggests much for reflection. 

Subsequently, Mr. Madison states, " the term ' legally ' was struck out; and the 
words ' under the laws thereof inserted after the word 'state,' in compliance with 
the wish of some who thought the term ' legal ' equivocal, and favoring the idea that 
slaverv was legal in a moral point of view." 3 Mad. Pap. 1589. 



OF WHAT THE PARTY MUST BE NOTFFIED. 41 

The clause is confined to persons iield to service in 
one state, under its laws, and escaping into another. 
The law is confined to thfc same class of persons. The 
notice, required by the law is, that the person harbored 
is a person of this precise class. To harbor a person, 
knowing that he is a slave and fugitive from labor, is no 
offence against the law of Congress. The person har- 
bored may be a slave in the state where he is harbored, 
and a fugitive from labor, in that state, and then he cer- 
tainly does not come within the terms of the act ; or he 
may have been a slave in another state, and a fugitive 
from labor, and yet it by no means follows that he was 
held to service under the laws of that state, and has es- 
caped into another. 

I pass over the objection that, in a free state, or in a 
case arising under the Constitution of the United States, 
the word slave has no legal meaning ; and that it was im- 
possible that Andrew, in Ohio, could be the slave of the 
plaintifi". These considerations are of little moment here, 
and I am willing to take the word slave in the sense in 
which it is obviously used as the synonym of servant. 
The difficulty of the plaintiff is, not in having used an im- 
proper word to describe the condition of the fugitive, but 
in this, — that the notice to the defendant, required by 
the statute, and made absolutely essential to the oftence 
of harboring, is not alleged. For aught that appears, the 
notice may have been, that Andrew was the plaintiff's 
slave in some foreign state, and a fugitive from labor. 
The pleader has utterly failed to allege notice to the de- 
fendant, of the facts of which the statute says he must 
have notice, and consequently, has failed utterly to 
allege any title to the penalty he claims. I am wholly 
unable to see how this objection arising from the omissioi:^ 
to aver notice can be met and overcome. 

F 



42 NO STATEMENT OF FACTS OF OFFENCE. 

Tlie Supreme Court of New Hampshire has gone as 
far as any court, in relaxing the rule of strict construc- 
tion, as to penal statutes; and yet that court held a de- 
claration bad on error, which described the offence with 
far more certainty than is to be found in this.^ 

The objection whic'n has just been considered, applies 
as strongly to the second count as to the first. But the 
second count attempts to avoid one error of the first, by 
substituting the words " had notice " instead of the 
words '"well knowing." But the notice, alleged in the 
second, is the same as the knowledge averred in the first, 
namely: that "the said Andrew was the slave of the 
plaintiff, and a fugitive from labor." 

I pass to another objection to the declaration. I sub- 
mit that it is essential, that a declaration claiming the 
penalty imposed by the law, for harboring fugitive ser- 
vants must set forth theyac/s which constitute the offence. 

Mr. Chitty lays down the rule as applicable to crim- 
inal cases, thus: "the indictment must state the facts of 
crime with as much certainty as the nature of the case 
will admit."" And the same rule has been sanctioned by 
the Supreme Court of Tennessee; "an indictment must 
contain a definite description of the crime charged, and 
a statement of the facts which consthute it, or judgment 
will be arrested."^ The reason assigned for the decision 
is, that the prisoner, if indicted a second time for the 
same offence, may be able to show from the record, that 
it is the same offence. Examples of the application of 
the rule are frequent in the books. In one case,^ the de- 
fendant was " convicted for procuring from one Mary 

(1) Fairbnnk v. Antrim, 2 JV. H. Rep. 205; See also, Respnblica v. Tryer, 3 Yates, 
458, as to the strictness with which the allegations of otl'ence must pursue the statute. 

(2) Chitty's Crim. Law. 171. (3) Tennessee v. Fields, Martin Yerger^s Rep. 
137. (4) Rex v. Murray, 2 Stra. 1127. 



NO STATEMENT OF FACTS OF OFFENCE. 43 

Kinsford, by false tokens, a promissoiy note, under pre- 
tence that he would brmg her money for it." And upon 
a motion in arrest of judgment, it was held that the in- 
dictment must specify the false tokens. So, an indict- 
ment for obtaining money under false pretences must state 
what these false pretences are.' In another case, where 
a summary form of conviction was given by statute, in 
which the offence was required to be stated, for any agree- 
ment by journeymen manufacturers for controlling any 
person carrying on any manufactory, it was held that a 
conviction, alleging generally that the defendants were 
concerned in entering into a certain agreement, for the 
purpose of controlling A. B., without stating what the 
agreement was, was bad." This case may also be re- 
ferred to, with advantage, for instruction as to the neces- 
sity of setting forth statutory oftences, where the facts 
constituting it are not precisely stated, in the very words 
of the statutes. 

The rule laid down, in these cases, admits, indeed, of 
exceptions. It has been decided, that in an indictment 
for keeping a disorderly house, or for being a common 
scold, or for endeavoring to seduce a soldier from duty, it 
is unnecessary to allege the particular acts constituting 
the offence. The reason assigned is, that each of these 
offences consists of a number or series of acts whicli it 
would be difficult, if not impossible, to set forth. The 
reason of these excepted instances does not apply in 
this case. The facts which constitute the offence of 
harboring may be ascertained without difficulty. They 
may be easily ^et forth. There is no reason, then, for 
any encroachment, in this case, upon the great and salu- 



(1) Rex V. Mason, 2 T. R. 581; Rex v. Prexfnn. 1 Camp. 495. t2) Rev v. 
J^ield, 6 East. 417. 



44 NO STATEMENT OF FACTS OF OFFENCE. 

tary rule, applicable not less to penal actions than to 
criminal prosecutions, that any person, accused of an 
offence, shall have the charge against him so precisely 
set forth, that he may not be unprepared in his defence.-' 
If this declaration be sustained, this great rule of justice 
as to this defendant, must be broken down ; for it would 
require more than human sagacity to divine, from the 
words used in the plaintiff's declaration, of what the de- 
fendant was accused, and what was intended to be given 
in evidence against him. 

What are the words? In the first count, that the de- 
fendant * * '*did * * * * unlawfully receive the said 
slave * * into his service, and knowingly and willing- 
ly harbor, detain, conceal and keep the said slave." — 
In the second count, that the defendant " did * * know- 
ingly, willingly * * * and unlawfully conceal the said 
slave from the plaintiff." In neither of these counts are 
any facts constituting the offence of harboring set forth, 
unless the allegation that the defendant received the 
slave into his service, in the first count, be the setting 
forth of such a fact. 

, I submit that the averment in neither count is suff- 
iciently precise and certain. The allegation in the 
•second count especially, which merely a^'ers conceal- 
ment, without stating any facts or circumstances con- 
stituting the concealment, cannot, it seems to me, be 
held to be a sufficient description of the offence. 

The last enquiry which I shall submit to the court, 
in reference to the declaration, is this : Does it contain 
a sufficient averment, that the act of the defendant, in 



(!) Bartlett vs. Crazier, 17 Johns. 458; TVillinms vs. Hinghnm, 4 Pick. 366; 
Loper 1)8. Harvard College, 1 Pick 17P. 



NO AVERMENT, CONTRA FORMAM STATUTI. 45 

harboring the fugitive servant, was contrary to the form 
of the statute ? It will hardly be denied, at this day, 
that such an allegation is indispensable, in an action for 
a statute-penalty. The authorities are too numerous 
and too uniform to admit of a doubt. The courts, of 
later years, have said that if the question were one of 
first impression, the propriety of holding the plaintiff so 
rigorously to the precise averment might be doubtful : but 
the rule is regarded as too firmly established by author- 
ity to be shaken, except by legislation. And it is not 
sufficient if the declaration, omitting the averment that 
the act complained of was contrary to the form of the 
statute, conclude with the allegation, 'whereby, and 
by force of the statute, an action has accrued,' an 
allegation, by the way, wholly omitted in the decla- 
ration under examination. Nor is it sufficient that the 
plaintiff refer to the statute generally as the ground of 
his action. The allegation must be that the act com- 
plained of was contrary to the statute.^ Is this allega- 
tion contained in the declaration before the cpurt ? 
There is an allegation that the defendant did certain 
acts, " in consequence of which the plaintiff lost said 
slave and was deptived of his services and of all benefits 
* * * vvhich would have accrued * * * ff-om such 
slave and his services, contrary to the statute^'''' &c. The 
loss of the fugitive servant and the resulting injuries are 
facts wholly immaterial. If no such loss or injury were 



(1) Lee V. Clarke, 2 East. 333: Sears v. United States, per Story J. 1 Gall. 
259: Smith v. United States, per Story, J. 1 Gall. 265: Renick v. United 
States, per Story, J. 1 Gall. 271: Mills v. Kennedy, 1 Bailey, S. C. Rep. 
17; Barter v. Martin, 5 Green, Id: where the Court says (urther, p. 80, " in a 
penal action, an essential feature ought to be directly averred instead of being left to 
be gathered by argument and inference: Smithv. Moore, 6 Green. 276: J\fichols 
V. Squire, 5 Pick. 169: Haskell v. Moody, 9 Pick. 162. 



46 NO AVERMENT CONTRA FORMAM : HARBORING, WHAT. 

he consequence of defendant's acts, he would still be 
liable, under the act relating to fugitives from service, for 
the offences prohibited by it, if projierly alleged and 
proved. And yet these immaterial matters only are 
alleged to be ' contrary to the statute.' It may be said 
that this is a technical objection. I answer in the lan- 
guage of Mr. Justice Story: "As this is a penal action, 
if it be well founded in law, the plaintiff' ought to have 
the full benefit of it."^ It may be said, also, that the 
allegation ' contrary to the statute,' may refer to the acts 
of the defendant. I answer that upon a fair and correct 
construction, the words refer to the allegation that the 
plaintiff' was deprived of the slave and his services, and 
not to the act of harboring: and, in this action, the de- 
fendant is entitled to tlie benefit, even, of a strict and 
literal interpretation." 

1 now come to the question. What is harboring or 
cealing? 

I have already observed that these two words were 
probably used in the act as equivalents: just as the 
words 'obstruct or hinder' are used to describe the same 
offence. Whether they are or not, however, is a mat- 
ter of no importance to this argument. No question 
arose upon the trial as to the concealment of Andrew. 
The only connection between him and the defendant 
was, that, by the defendant's permission or direction, he 
drove the wagon in which the other negroes were con- 
veyed. He sat as driver, in open view, and was never 
concealed at all. I shall not trouble the coiu-t. therefore, 
with any observations as to the sense in which the term 



(1) 1 Gall. 265. (2) United States v. Mann, 1 Gall. 187, and cases cited 
ante p. 16, 17, 18. 



HARBORING, WHAT. 47 

'conceal' is used in the statute, but confine myself to an 
inquiry as to the true import of the term^ harbor. The 
definition of this word as given by Bouvier and sustained 
by the Supreme Court of North Carolina, has been al- 
ready stated. 

If this legal definition shall not seem to the court 
to be the true one, I invite attention to other authori- 
ties which give the sense of the word in its ordinary 
use. Johnson defines the verb, to harbor, thus: "To 
entertain; to permit to lodge, rest, or reside; to shelter; 
to receive; to secrete. Webster follows Johnson. His 
definitions are: To entertain; to permit to reside; to 
sheher; to secrete. He illustrates the use of the word, 
in the sense of shelter or secrete, thus: 

Harbour yourself for this night in this castle. 

Richardson says that the word harbor comes from her 
an army, and berg-en, beorg-an, byrg-an, to defend, to se- 
cure, to fortify: hence, here-berga, a station where the ar- 
my rests, and hereby rig-aii, to harbor, to abide, to lodge, 
to quarter. "To harbor," he adds," "is generally, to 
secrete or protect ; to receive or take under protection ; to 
stay, remain, or abide in security ; to shelter, to lodge ; to af- 
ford or grant shelter or lodging." Among the examples 
given by Richardson, are these, which illustrate at once 
the progress of the language and the meaning of the word 

Holychurche, licrbergh to all that ben blessede. — Piers' Plouman, p. 124. 

I was herbarwdcs and ye herboriden me. — Wiclifs Bible : Matt/Lew, c. 25. 

I was herbourless and ye lodgid me. — Bible 1551; Matthew, c. 25. 

Therefor he ledde them ynne and resseyuyde in herbore, and that nyght ther 
dwelliden with him. — Wiclifs Bible; Dedis, or Acts, c. 10. 

Temperance * * * 
Obtaining harbour in a sovereign breast. — Drayton. 

Your king, * * * 
CTa.\es harbourage v/ithin your city walls. — Shakspeare: K. John; Act II, S. 1. 



48 HARBORING, WHAT. 

For I was hungry and yee gave me meate, thirsty and yee gave me drinke, 
naked, and yee doathed me; harbourksse and ye lodgid me.—HomUies, citing 
Matthew, c. 25. 

All these examples, and all others cited by Richard- 
son, shew that harbor always conveys the idea of rest, 
residence and shelter. It denotes always, whether used 
in a common or figurative sense, a kind of domicil, 
habitation, or abode, sometimes permanent but generally 
temporary. The notion of harboring, I think I may 
safely say, is never dissociated, inany correct use, from 
the notion of dwelling. To harbor never means, to afford 
facihties for flight. It never means, aid in the act of 
fleeing. It cannot, without the greatest violence to 
language, be made to signify transportation in an open 
market wagon, even if the transportation be intended to 
aid the flight of a fugitive servant, with full notice that 
he is such within the terms of the act of Congress. 

There is appropriate language to describe such an 
act. Men, speaking of it, would say, ''such a man 
aided the escape of such a one's servant," or "he 
helped a runaway off." No one would ever think of 
saying '^he harbored the servant fifteen miles by letting 
him drive the wagon." The word "harbor" in con- 
nection wdth such a transaction is felt to be wholly m- 
appropriate. Whoever may say that one man harbora 
another, when he only takes him up in the road and 
gives him a ride in order to help him escape, no matter 
from what, cannot fail to be conscious that he uses 
language in a strained and forced sense: that the term 
used does not, with any fitness and accuracy, describe 

the fact 

If the claimant is in pursuit and, for the purpose of 
preventing the arrest authorized by law, any person 



HARBORING, WHAT. 49 

should cany the fugitive servant away in a wagon or 
otherwise, so as to interpose an obstacle to the claim- 
ant in seizing or arresting the fugitive, his act would, 
doubtless, come within the rational and obvious signi- 
fication of "obstruction or hindrance." And, even if 
the claimant be not in pursuit, such a transportation 
may, with far less force upon language, be denominated 
"obstruction or hindrance in arresting," than "harboring 
or concealment." The very object of the transportation 
is, it is alleged, to prevent arrest: if so the object is to 
"obstruct or hinder" the arrest: and the means used are 
adapted to the end. The only circumstance wanting to 
complete the offence is the presence of the claimant or 
his agent attempting to seize or arrest. This circum- 
stance undoubtedly is indispensable upon any proper 
construction of a penal statute: but I repeat, less 
violence is done to language, by holding the transporta- 
tion' without this circumstance, to be *' hindrance or 
obstruction in seizing or arresting," than by holding it to 
be "harboring." And it is to be noticed that the 
declaration before the court, contains a count for " ob- 
struction and hindrance." It was abandoned because 
the " obstruction or hindrance " could not be proved as 
alleged. It was not interposed, as alleged, against the 
plaintiff or his agent, but against two ruffians who were 
in the act of committing felony under the laws of Ohio. 
And the counsel for the plaintiff felt that it was not 
sufficient to prove obstruction or hindrance generally, but 
the precise obstruction or hindrance described in the 
statute. They abandoned that count, therefore, and 
endeavored to accommodate the proof to the count for 
harboring or concealing. But, in attempting to avoid 
one difficulty, they rushed upon another,, and, as it seems 



50 HARBORING, WHAT. 

to me, a greater. They proved a case of transportation, 
without conceahnent. for a short distance, with the 
intent, — as I will admit for the sake of the argument, — of 
aiding the escape of a fugitive slave. This case, thus 
stated, — and it will not be pretended that the proof went 
beyond this, — is a case of "obstruction or hindrance." 
It wants only the circumstance of being obstruction or 
hindrance of the claimant or his agent m arresting or 
seizing, to make the case of obstructrdn or hindrance 
made penal by the act. But it is not, in any just or 
proper sense, a case of harboring. 

Let it be supposed that an action was brought at 
common law for harboring a servant of the plaintiff; and 
the proof was, merely, that the defendant allowed the 
servant to ride in his wagon a part of the way to the 
place to which he was flying, with the intent to aid his 
escape, would this sustain the action? Is there any 
case, where any such proof as this has been held to 
make out the allegation of harboring? I am sure there 
is no such case; and I am confident that upon such proof 
no plaintiff ought to recover, or could recover. 

A single point in relation to the true import of the 
word harboring remains to be examined. Is ^''any overt 
act so marked in its character as to shew an intention 
to elude the vigilance of the master or his agent, and 
calculated to attain such a purpose, a harboring, within 
the meaning of the statute?" 

I cannot but think, that the learned judge who thus 
defined the act of harboring, failed to mark the true na- 
ture of that act with his usual precision, and that upon 
mature reflection he will perceive that the definition is 
inaccurate. 



HARBORING, WHAT. 51 

If the true legal definition of harboring be fraudulent 
concealment, then, doubtless, every act of harboring in- 
cludes the intent to ekide the master's vigilance, and is 
calculated, at least in the judgment of the harborer, to 
attain that object. But every act, so intended and cal- 
culated, does not amount to fraudulent concealment ; — far 
from it. On the other hand, if it be held that receiving, 
entertaining, and sheltering, without concealment, may 
constitute harboring, then it is quite obvious that there 
may be cases of harboring, where there is no intention 
of eluding the vigilance of the master, and no adapta- 
tion of means to that end ; and, also, cases where both 
the intention and the adaptation exist, but which do not 
answer any ordinary definition of harboring. If harbor- 
ing be not fraudulent concealment, then entertainmg and 
giving shelter to a fugitive, knowing him to be such and 
after notice from the claimant, is harboring, although it 
may be done openly and without any concealment, and 
without the slightest intention to elude the vigilance of 
any body. On the other hand, directing the fugitive to 
a place of refuge ; guiding him, no matter how short a 
distance, in his flight; lending him a horse to facilitate 
his escape; and, above all, enticing him to fly, — are acts 
intended and calculated to elude the vigilance of the 
master : but, in what dictionary of the English lan- 
guage is any definition of harboring to be found, which 
will fairly include them? Advising a fugitive to fly, af- 
ter seizure, w^as held by Judge Washington, not to be a 
rescue, though of the same mischief; because, there can 
be no rescue, in the true legal sense of that word, with- 
out force. Shall it be said, that because it is an act 
calculated and intended to elude the master's vigilance, 
that it is harboring? Surely not. It may be held to 



52 ACT NOT TO RE AMENDED BY CONSTRUCTION. 

be rescue, with far less violence to the natural sense of 
language. There is no usage, and no authority, that I 
have been able to discover, which warrants the use of 
the word harboring in the sense, at once too broad and 
too narrow^, assigned to it by the definition in the ques- 
tion certified. No rule of construction, governing the in- 
terpretation of penal statutes, or any other statutes, war- 
rants such a definition. And I submit, w-ith great 
deference, that it cannot be maintained, that Congress 
used the word in the sense supposed, — as a sort of re- 
siduary term, which should include in its comprehensive 
inport, all possible injuries to the rights of masters, not 
already made penal under. the denomination of obstruc- 
tion, hindrance, or rescue. Such an intention will not 
be ascribed to Congress without some evidence of it ; 
and, I respectfully ask, where is the evidence of any 
such intention? 

If it be said that upon this construction of the stat- 
utes, a master may, in many cases, be deprived of his 
servants by acts which will not expose the doer of them 
to the statute penalty : — I repeat the answer I have 
already given : the statute must not be made broader 
by construction. Words must not be forced out of their 
usual sense and meaning. Language must not be ac- 
commodated to a sense which it does not ordinarily 
convey. Shall it be said that public security is a less 
important end, than the right of a master to his servant? 
That less strictness shall be required in the construction 
of an act for the reclamation of fugitives from service, 
than will be observed in construing acts to prevent mis- 
demeanors or felonies? Shall it not be rather said, that 
if the plaintiff does not bring his case strictly within the 



ACT NOT TO BE AMENDED BY CONSTRUCTION. 53 

act, he cannot entitle himself to the penalty, but must 
resort to such other remedies as the law may give; or, 
if the law affords no other, that he must await amend- 
ment by the Legislature. 

The act doubtless is defective. It gives no penalty 
for enticing to escape; none against obstruction or 
hindrance after seizure, which does not amount to setting 
the servant at liberty by force ; none against enticing to 
fly after seizure ; none, as we claim, against transporta- 
tion, without concealment, with or without intent to aid 
an escape. It provides no process by which the fugitive 
shall be brought before a judge or other magistrate for 
the investigation of the claim; authorizes no commit- 
ment to custody; provides no mode of removal except 
by the mere force of the claimant. Mr. Justice Wash- 
ington points out nearly all these omissions, and, 
speaking of some of them, says that "an attempt has 
been made in Congress to correct these glaring defects, 
without which correction the act is found to be, practi- 
cally, of little avail: but the attempt has not as yet 
succeded."^ 

Will this court, by construction, attempt to supply any 
of these defects ? I trust and beHeve they will not. In 
my humble judgment, no more fatal blow could be 

(1) Worthington v. f^estun. 4 Wash. 461 .- see also. Hill v. Low, A Wash. 326, 
and Ex parte, Simmons, 4 Wash. 396. 

In Blackmore v. Phill, 7 Yerg. 463, it was claimed that a slave, taken from 
Tennessee, where emancipation is prohibited unless by assent of the legislature or 
the county court, to Illinois, for the purpose of being manumitted, and after 
such manumission immediately brought back into Tennessee, did not gain his 
freedom, the whole proceeding being in contravention of the policy of the state. 
The Supreme Court of Tennessee, composed of Catron, C. Justice, and Peck and 
Green, Associates, held, that though it might be contrary to state policy, yet there 
was no enactment prohibiting it, and they could not supply the law. The language 
of the court is very applicable here : " It is a casus omissus ; and the evil, if it be 
one, is not remedied by any enactment. We cannot, for the purpose of preserving 
our policy from violation, make the law. It is enough for us to administer such as 
are made to our hands. '" 



54 ACT NOT TO BE AMENDED BY CONSTRUCTION. 

inflicted upon the stability of our institutions, than by 
such an assumption of the duties of the Legislature. 
It is not to be disguised that multitudes, in all parts of 
the country, regard the act of the defendant, admitting it 
to have been done for the purpose of aiding the escape 
of a fugitive slave, not merely as no crime, but as an act 
of humanity and mercy. He did not seek to deprive the 
plaintiff of his slave: he did not go into Kentucky to 
cCxcite him to escape; he had nothing whatever to do 
with his escape. But he was appealed to for aid by a 
person who had already escaped, and he yielded to the 
appeal, not to injure the master, but to benefit the slave. 
Not even in any slave state, — certainly by very few 
even of slaveholders, — will such an act be regarded as 
morally wTong. The passages wdiich I have cited in 
illustration of the true sense of the word "harbor," from 
that Revealed Law, to which all other law must yield, 
most impressively teach that the act of the defendant 
was no crime. If then, that act shall be made an 
-offence by construction, — if, not being within the terms of 
the law^ taken in their natural and usual sense, it shall 
be brought within them, by intendment, — the impression 
on the public mind must be deep and painful. Far from 
adding anything to the security of the master's legal 
rights, it will involve the assertion of those rights in 
perils and dififlculties never hitherto encountered. For it 
will arouse that spirit of martyrdom, which in the inidst 
of acts believed to be acts of justice and of duty, 
regards, if not with indifference, yet with calm defiance, 
the commands and the penalties of unjust law. 

I here close my remarks upon the several points in 
this case, which arise imder the act of Congress of 1793. 



ANSWERS TO QUESTIONS CERTIFED. 55 

If J have been so fortunate as to satisfy the Court that 
the several positions I have maintained, are sound in law, 
the questions certified for decision, which arose upon the 
construction of that act, before verdict, must be answer- 
ed, substantially, thus: 

1. The notice required by the act of 1793 to charge 
a person with the penalty imposed by that act for har- 
boring or concealing a fugitive from labor, need not be 
in writing. 

2. The notice required by the act must be given by 
the claimant of tlie fugitive, or some one acting for him, 
to the person to be held liable for the penalty, either in 
writing, or verbally, or by publication brought home to 
the party to be charged. 

3. Clear proof of the knowledge or behef of the de- 
fendant, that the person harbored was a slave and fugi- 
tive from labor, is not sufficient to charge him with notice 
under the act; for, 

1. The terms " after notice," as used in the act, are not 
tlie mere equivalent of " knowing," which is also used, 
but their true import is, after information communicated 
to the defendant with design to charge him, either by 
the claimant, or some one acting for him.^ 

2. Notice or knowledge that the person harbored was 
a slave and fugitive from labor, is not notice or knowl- 
edge, that such person was held to service under the 
laws of one state and escaped into another. 



(1) I have omitted to refer the Court to the enactments against harboring in the 
several states. So far as I have examined them, I do not find that, in any one, is lan- 
guage similar to that of the act of 1793 employed. The statutes of Missouri prohib- 
it harboring any minor, apprentice, servant or slave, knowing; or having reason to be 
lieve him to be such. Statutes of Missouri, 318. The statutes of Kentucky make it 
a penal offence to conceal a runaway slave ''knowing" him to be such. 2 Statutes of 
Kentucky, 318. The Statutes of Alabama prohibit "knowingly" harboring slaves un- 



56 ANSWERS TO QUESTIONS CERTIFIED. 

I add that in Ohio, the testimony of negroes in a case 
where a white man is a party, is not admissible in a 
court of justice. Of course, evidence of their statements 
made to the defendant as to their conduct, must, also, be 
inadmissible ; and knowledge or belief, founded upon such 
statements, cannot, in consistency with the rule exclu- 
ding their own testimony, be held to charge the defendant, 

4. Receiving a fugitive from labor, at three o'clock in 
the morning, or at any other hour, at a place in Ohio 
twelve miles from the place where he was held to labor 
in Kentucky, and transporting him in a closely covered 
wagon twelve or fourteen miles, so that the fugitive es- 
capes pursuit, and his services are lost to his master, is 
not a harboring, or, necessarily, a concealing of the fugi- 
tive M^ithin the statute. 

It is, certainly, not a case of harboring within any 
ordinary use of that word. If conceahng be a distinct 
offence under the statutes, and the court shall be of 
opinion that to constitute that offence it is not necessary 
that the fugitive should be harbored, that is, received, 
sheltered, protected or entertained, at or in some certaidi 
place, then transportation under the circumstances enu- 
merated, may amount to the concealment prohibited by 
the act, provided there be an intention to conceal. But 
such transportation merely, without such intention, is not 
concealment. The circumstance that, by the transpor- 
tation, the fugitive escapes pursuit and his services are 



der certain circumstances. Toulmin's Digest 628, 641 ; Revised Statutes of Arkan- 
S04, 731. The statutes of other states, as that of Virginia for example, JTo/e's Di' 
gest 494, prohibits secretly harboring; and even in actions upon these statutes ft is ne- 
cessarj' to aver that the defendant knew the person harbored to be a person within the 
prohibition of the law. Birney \. Ohio,8 Ohio Rep. 238. How can it be held then, 
under the act of Congress, which adds to the requirement of knowledge, the addi- 
tional requirement of notice, that this latter requirement means nothing, — is merely 
superfluous. 



ANSWERS TO QUESTIONS CERTIFIED. 37 

lost to his master are immaterial. They are not made, 
under the act, of the slightest consequence to the ques- 
tion, Concealment^ or, no concealment? 

5. Any state of facts, which makes a case of harbor- 
ing or concealment, if the fugitive escape, will make 
such a case, though the fugitive may be recaptured. 

6. Transportation of a fugitive in an open wagon 
twelve or fifteen miles, is not a harboring or conceal- 
ing of him within the statute. The loss of the services 
of the fugitive is an immaterial circumstance. 

7. A formal claim of the fugitive from the person 
harboring or concealing him, need not precede or accom- 
pany the notice. 

If the notice be given, it is enough to apprize the 
party that his acts are in prejudice of an asserted right: 
indeed, the very object of the requirement of notice is 
that the party to be charged may be apprized of the ex- 
istence of the right and the intention of reclamation, 
and of the facts essential to the existence of the right. 
The notice, in shoit, amounts to a claim. 

8. It is too broad to say that any overt act, so 
marked in its character as to shew an intention to elude 
the vigilance of the master and calculated to attain 
such an object, is a harboring of the fugitive within the 
act. Such an act may be an act of harboring; but is 
not always and necessarily so ; and there may be har- 
boring where there is no such overt act. 

It will be observed, and it may be important to ob- 
serve, that all these questions relate to the proof neces- 
sary to establish a case of harboring or concealing 
under the act. They are questions, not upon the dec- 
laration, but upon the evidence, arising, not after verdict, 
but before verdict. They are questions as to instructions 

H 



58 ANSWERS TO Q,UK8TIONS CERTIFIED. 

proper to be given to the jury, and, consequently, there 
can be no presumption in favor of the existence of any 
facts not directly stated in the certificate of division : — 
no such presumption, as is made often after verdict, in fa- 
vor of a title substantially, but defectively stated. The 
court is to act, as if called upon novi^, originally, to say 
what facts and circumstances it is necessary to aver and 
prove^ in order to make out a case of harboring. 

And this is a view of the case which I feel very 
desirous to have taken into deliberate consideration. It 
is of vast consequence that the construction of the act 
be correctly settled, in accordance with general prin- 
ciples, applicable to the construction of similar statutes; 
and that it should be distinctly known what facts must 
be averred and proved to make a case w^hich will sub- 
ject defendants to its penalties. The result to the im- 
mediate parties is, comparatively, of little importance. 

The questions, which arose after verdict, — still pro- 
ceeding on the supposition that my reasonings have 
been so fortunate as to meet the approbation of the 
court. — must be answered substantially thus: 

1. The declaration of the plaintiff in neither count 
contains the necessary averment of escape from the 
state of Kentucky into the state of Ohio. 

2. Nor does the declaration, in either count, contain 
the requisite averment of notice. 

3. Nor does either count contain a proper allegation 
that the defendant harbored the fugitive, because the acts 
constituting the harboring or conceahng are not set forth. 

4. Each count is otherwise insufficient in these respects: 
1. The first count, in that it does not, with any cer- 
tainty, allege who escaped: 



ANSWERS TO QUESTIONS CERTIFIED. 59 

2. The same count, in that it contains no certain alle- 
gation that anji one escaped: 

3. The second count, in that the allegation of con- 
cealment is imperfect and defective: 

4. Both counts, in that neither concludes against the 
form of the statute. 

It is said that these defects are cured by the ver- 
dict. Some of them, perhaps, may be: but such of 
ihem as go to the title to the penalty certainly are not. 
In fact, in nearly, if not quite, every case which I have 
cited, the objections to the declaration were taken, not 
only after verdict, but after judgment, and yet sustained. 
I presume, also, that this court will answer the ques- 
tions certified without undertaking to say what shall be 
the appHcation of the answers to the case in the Circuit 
Court. The questions concern the sufficiency of the dec- 
laration, and the object of them is to obtain the judgment 
of this Court upon that. The Circuit Court may be 
safely left to apply that judgment to the case before it. 

I submit only a single additional remark upon this 
part of the case. I have discussed most of the ques- 
tions in the cause as arising upon the declaration; and 
I have done so for the sake of convenience: but, in fact, 
three of the most important questions, namely, — What 
facts constitute an escape? What is notice? and, How 
is it to be given? are questions or, at least, essential 
elements of questions which arose before verdict, and of 
course, cannot be affected by it: while another impor- 
tant question — What is harboring.^ arose, also, before 
verdict: although the question, — What is a sufficient 
averment of harboring.^ — arose after verdict. 

I regret the necessity of troubling the court with these 



60 ACT REPUGNANT TO ORDINANCE OF 1787. 

discriminations; but they seem essential to a correct 
view of the whole case. 

I shall MOW pass to the questions which arise not under 
'the act, but under the constitution and ordinance of 1787. 
And the first of these questions is this: Is the act of 
' 1793, repugnant to the ordinance of 1787? 

At the close of the revolutionary war, the Congress 
of the United States claimed the territory west of the 
Alleghanies, as a country conc[uered from Great Britain, 
/ to be held and disposed of for the joint benefit of all the 
' states. On the other hand, the same territory was 
[ claimed by several states, as belonging, wholly or in part, 

exclusively to them, 
j These conflicting claims were adjusted by comprom- 

ise in the result of which, the government of the Uni- 
I ted States obtained undisputed possession of the re- 
I gion north-west of the Ohio, and proceeded to provide 
for a temporary government, for the organization of states, 
and for the permanent establishment of certain great 
fundamental principles, as the immutable basis of all 
laws, constitutions and governments within the territory. 
The ordinance of 1787 was designed to accomphsh 
these interesting objects. It was almost the last work 
of the Congress of the Confederation; — that illustrious 
body, whose wisdom, fortitude, magnanimity and devotion 
to freedom attracted and still attract the general hom- 
age of mankind; — and, among all its splendid titles to 
honor and veneration, none shine brighter than this 
ffreat act. It hes at the very foundation of the institu- 
tions of the free North-west : and, in all time to come, it 
will be, as, in time past, it has been, regarded reverently, 
as the source and safeguard of its prosperity and power. 



\ 



ORDINANCE OF 1787. 61 

The power of the Congress of the Confederation to \ 
estabhsh this ordinance has sometimes been drawn in 
question : But never, with success. The Congress of 
the Confederation represented the United States in 
carrying on the war with Great Britain, and, in that 
capacity, might doubtless, hold all acquisitions made by 
conquest from the common enemy, for the general benefit 
of all the States. The country west of the Alleghanies 
was an acquisition so made. The right of the United 
States thus acquired was confirmed by the cessions of 
the states to the whole vast territory north-west of the 
Ohio. The title, thus acquired and thus confirmed, was 
held by the United States in trust, for the benefit of the 
several states, subject to certain conditions in the deeds 
of cession. In the execution of this trust. Congress pro- 
ceeded to promulgate and establish the ordinance of 
1787; and it cannot be doubted, it seems to me, that, 
holding the proprietary title in the land and complete 
jurisdiction over the territory in every respect, Congress 
had a perfect right to prescribe conditions of settlement 
within the territory, and establish principles, to which 
all laws and constitutons established within it should 
conform, provided only, that these conditions and princi- 
ples should not be incompatible with the great ends in 
view, the common benefit of all the states, and the crea- 
tion and admission into the union, of new states upon 
equal footing with the original states. 

Accordingly the ordinance, after making various tem- 
porary provisions, proceeded to announce certain articles 
of compact between the original states and the people 
and states in the territory, and declared that they should 

REMAIN FOREVER UNALTERABLE, UnlcSS by COmiTlOn COU- 

sent. These articles established the inviolabilitv of 



62 ORDINANCE OF 1787. 

contracts, the sacredness of personal liberty, and the en- 
tire freedom of conscience. Tliey recognized and en- 
forced the duty of government to foster schools and dif- 
fuse knowledge. They declared the navigable rivers of 
the territory to be common highways and forever free to 
the inhabitants of the territory and to the citizens of the 
United States and of any other states that might be 
afterwards admitted ; they enjoined the observance of 
good faith towards the Indians, and the performance 
towards them, of those acts of kindness and peace, which 
should ever adorn the intercourse of the mighty with the 
weak ; and finally, that nothing should be omitted, which 
might be thought justly to belong to an instrument pro- 
viding for the creation of free states, they declared that 
^' there should be neither slavery nor involuntary servi- 
tude within the territory, otherwise than in the punish- 
ment of crimes." 

The great object of these provisions was explicitly 
declared. It was to " extend the fiuidamental principles 
of civil and religious liberty, which form the basis, where- 
on these republics, their laws, and constitutions are erec- 
ted; to fix and establish these principles, as the basis of 
all laws, constitutions and governments, which, forever, 
hereafter, shall be formed in said territory; to provide 
also, for the establishment of states and permanent govern- 
ment therein, and for their admission to a share in the fed- 
eral councils, on an equal footing with the original states." 
^ I know not that history records a sublimer act than 

\ this. The United American States, having just brought 
\ their perilous struggle for freedom and independence to a 
y successful issue, proceeded to declare the terms and con- 
\ ditions on which their vacant territory might be settled 
■ and organized into states; and these terms were, — not 



ORDINANCE OF 1787. Q^ 

tribute, not render of service, not subordination of any 
kind, — but the perpetual maintenance of the genuine 
principles of American liberty, declared to be incompat- 
ible with slavery; and that these principles might be in- 
violably maintained, they were made the articles of a 
solemn covenant between the original states, then the 
proprietors of the territory and responsible for its future 
destiny, and the people and the states who were to oc- 
cupy it. Every settler within the territory, by the very 
act of settlement, became a party of this compact, 
bound by its perpetual obligations, and entitled to the 
full benefit of its excellent provisions for himself and 
his posterity. No subsequent act of the original states, 
could affect it, without his consent. No act of his, nor 
of the people of the territory, nor of the states es- 
tablished within it, could affect it, without the consent of 
the original states. 

The ordinance was not adopted upon any sudden im- 
pulse. It was a deliberate, well considered act, and it 
received the unanimous assent of the states. There 
was not even a single negative from any delegate of any 
state, except that of one member from New-York. 

There can be, in my judgment, no ground whatever, 
for saying that, at any time, before the organization of 
state governments within the territory, these articles of 
compact, were in any respect, changed. They could 
not be affected by the adoption of the constitution of 
the United States, for that was the act of the people of 
the original states, to which the people of the territory 
were, in no sense, parties. The constitution of the 
United States, neither did, nor could, of itself and with- 
out the consent of the people and states of the territory, 
repeal, impair, abridge or alter the terms of the compact. 



64 ORDINANCE OF 1787. 

Tt left them, as it found them, in the full force of their 
original obligation. 

Nor was it supposed by any body, at the time of the 
adoption of the constitution, that it impaired the full effect 
of the ordinance. This is manifest from the express 
terms of the act to provide for the government of the 
territory north-west of the river Ohio, passed at the first 
session of the first Congress under the constitution The 
object of that act was declared, in its preamble, to be 
"that the ordinance of 1787 may continue to have 
FULL EFFECT."' It couformcd the temporary arrangements 
of the territorial government to the action of the new 
National Government, but did not touch at all any pro- 
vision of a permanent nature. 

Nor did the admission of the state of Kentucky into 
the Union, in 1792, affect the compact; for that was an 
act between the states, represented by Congress, and the 
people of Kentucky, represented by their convention, 
with which the people of the territory had no concern. 
When the State of Ohio came into the union, in 1802, 
it was under the provisions of an act of Congress, which 
contained an express proviso, that the constitution of 
the new state should " be republican, and not repugnant 
to the ordinance of 1787, between the orifrinal states and 
the people and states of the territory.'''''^ 

The constitution of Ohio was framed in accordance 
with these provisions. The Convention of the People of 
the territory incorporated into the constitution of the new 
state, the leading principles of the ordinance ; thereby 
claiming for the people of Ohio, the benefit of those 
provisions; recognizing their perpetual obligation, and 
imparting to them an additional sanction. The inter- 

1) 1 story's Lawi, U. S.,32. (2) 2 Story's Laws, 870. 



\ 



OHIO ADMITTED L XDER THE ORDI.NA.NCE. 



65 



diet against slavery was transferred to the constitution 
in the very words of the ordinance ;' and, as if to mani- 
fest as plainly as possible the sense of the j)eople on 
this subject, an additional provision was inserted, declar- 
ing that '' no alteration of the constitution shall ever 
take place, so as to introduce slavery or involuntary servi 
tude into this state."^ 

Ohio, in truth, came into the union, not so much in vir- 
tue of any act of Congress consenting to her admission, 
as in virtue of a right secured to her by the ordinance, 
and which could not have been denied to her without a 
flagrant breach of faith. The ordinance itself provided 
for the erection of states within the territory; and au- 
thorized such states to form i)ermanent constitutions and 
state governments; and stipulated for their admission, by 
their delegates into the Congress of the United States, 
upon the single condition that the constitution and the 
governments so to be formed, should be republican, and in 
conformity with the principles contained in the compact. 
The territorial limits of Ohio were defined by the ordi- 
nance, subject to the right of Congress, to form one or two 
states out of that part of the north-western territory 
lying north of an east and west line through the southern 
bend or extreme of Lake Michigan.^ It was the right 
of the people within the limits thus defined, to form their 
state government and come into the union, whenever the 
number of inhabitants should reach sixty thousand; and 
earlier, if consistent with the general interests of the 
confederacy. And, as it was their right to come in, un- 
der the ordinance, and, as it was by that instrument 



(1) 1 Chase's Statutes of Ohio, 82. Cons. Art. 8, sec. 2. (2) 1 Chase 81, Con*. / 
Art. 7. sec. 5. (3) See the Ordinance, 3 Story's Laws, 2073. / 



G6 ORDINANCE LIMITATION OF RIGHT OF RECLAMATION. 

made their duty to fnune their government and constitu- 
tion in accordance with the articles of compact, it seems 
impossible to maintain that by the act of entering the 
union, any of those articles could be abridged, impaired, 
or, in any way, modified. Certainly, the evidence of in- 
tention, both on the part of the People of the state and of 
the United States, that the articles of compact should 
stand unchanged, is full and complete. 

Ohio, then, came into the union, with the ordinance in 
her right hand. Her constitution did not supercede the 
ordinance ; but, on the contrary, re-afitirmed most of its 
provisions, and promulgated them anew, as "great and 
essential principles of liberty and free government," to 
be " forever unalterably established," for the benefit of 
the people of the state.^ And it is quite true, that most 
of the principles established by the ordinance, for all 
time, as fundamental law, are nothing else than the 
principles of natural right and justice; the obligation of 
which, although it may be recognized and enforced by 
compact, is derived, not from any agreement or consent, 
but from the essential constitution of man and society. 

What, then, imder the ordinance, were the obligations 
of the people of Ohio, and what the rights of citizens of 
other states, in relation to escaping servants? 

The clause in the ordinance, after prohibiting the ex- 
istence of slavery in the territory, proceeds thus: ^'- Pro- 
vided^ always, that any person escaping into the same, 
from whom labor or service is lawfully claimed in any 
of the oriifinal states, such iiigitive may be lawfully re- 
claimed, &c."* 

This exception to the prohibition was confined to the 

(1) Cons, of Ohio, Art. 8, (2) 1 Story's Laui«. 2078. 



ORDINANCE LIMITATION OF RIGHT OF RECLAMATION. 67 

original states, not by accident, but of purpose ; for the 
clause securing to the citizens of the states, the use of 
the rivers of the territory, is extended expressly to citi- 
zens of states, thereafter to be admitted into the union.' 
It is quite probable, that, at that time, it was not suppo- 
sed that any new slave state would ever be admitted 
into the union. The clause tiierefore, must be taken as 
it is found, and must receive the construction which its 
language demands. Its plain import is, that the right of 
reclaiming fugitives from servdce is confined to the citi- 
zens of the original states. 

The only exception to the prohibition of slavery, or 
involuntary servitude, is this restricted right of recla- 
mation. If this right of reclamation may be extended 
to citizens of other states, the prohibition may be nar- 
rowed and restrained in its operation. If it can be 
narrowed or restrained, it may be destioyed. The pow- 
er which can modify, may abohsh. It is obvious, that 
the prohibition in the ordinance must be maintained un- 
impaired, or surrendered altogether. It must be enforced 
as to all slavery and involuntary servitude, except that 
to which a fugitive from an original state must be sur- 
rendered, or it must be held to be no security whatever 
against the introduction of slavery into the state. If it can 
be successfully maintained, that the clause in the federal 
constitution extended the right of reclamation to thft 
citizens of new states, it will follow that an amend- 
ment to that constitution may give to the citizens of other 
states, emigrating into Ohio, the right to bring their slaves 
with them and hold them there. An amendment of the 
constitution, may be adopted without the assent of a 

(1) 3. M 2077. 



68 COMPACT IN THE ORDINANCE NEVER ABROGATED. 

single state north west of the Ohio ; and consequently, the 
entire clause prohibiting slavery, as well as every guar- 
anty of personal rights contained in the ordinance, may 
be swept away, against the will of tlie people and the 
states of the north-west. 

Up to the time when Ohio came into the union, it can- 
not be reasonably pretended that any servant escaping 
into the noith west territory from any state, not being one 
of the original states, could be reclaimed; tor, up to that 
time, there is not the slightest ground for saying that the 
people of the territory, had, in anywise, assented to any 
extension of the right of reclamation. 

And when Ohio did come into the union, it was upon 
the express condition on the part of Congress, and with 
the full understanding on her part, that her constitution 
and government should be established in conformity with 
the ordinance. 

The state of Ohio and the courts of Ohio have never 
regarded the ordinance as abrogated by the admission of « 
Ohio into the union. The Supreme Court of the state 
has declared the articles; of compact to be of higher 
obligation than the state constitution : "for the constitu- 
tion may be altered by the proi)le of the state, while 
these cannot be altered without the assent both of the 
people of this state, and of the United States, through 
their representatives. It is an article of compact, and, 
until we assume the principle that the sovereign power 
of the state is not bound by compact, this clause must 
be considered obligatory."^ And Mr. Justice McLean, 
referring to the possibility that a majority of the voters 
of Ohio might so alter the constitution as to admit 

(1) Hogg V. Znnfsvillc Canal and Mannjucturing Company, 5 Ohio Rep. 414. 



PROHIBITION OF SLAVERY NOT ALTERED BY CONSTITUTION. 69 

slavery, observed : " But does not the compact prevent 
such an alteration without the consent of the original 
states ? If this be not the effect of the compact, its im- 
port has been misconceived by the people of the state 
generally. They have looked upon this provision as a 
security against the introduction of slavery, even beyond 
the provisions of the constitution. And this considera- 
tion has drawn masses of population to our state, who 
now repose under all the guaranties, which are given on 
this subject by the constitution and the compact."^ And 
Mr. Justice Story, in his notice of the ordinance in his- 
work on the constitution, does not intimate any doubt as- 
to the permanent obligation of its articles of compact.^ 

And will it now be said that Ohio, — though no such 
thing was intended, or, in any quarter, so much as thought 
of, — by the act of entering the union, gave her assent to 
a modification of the provision of the ordinance which 
prohibits slavery? Will it, can it be said, that the consti- 
tution of the union, which we have ever understood, was 
designed to favor hberty, did, in fact, admit slavery 
where it had been prohibited by the act of the nation ? 

With quite as much — with even more — reason may it 
be maintained, that the clause in the compact, assuring 
to all the people of the United States the unobstructed 
navigation of the rivers of the northwest, has been 
abrogated, by the admission of the states, created out of 
the territory, into the union. The compact in relation to 
navigation, and that in relation to slavery, stand upon 
the same foundation.^ And it has never been doubted, 
so far as I am advised, that the provision in regard to 



(1) Spooner v. McConnell, 1 McLean, 349. (2) 3 Comm. on Cons. 188. 
(3) 1 McLean, 349. 



70 ACT OF 1793, REPUGNANT TO ORDINANCE OF ITH?. 

navigation is a limitation, both upon the general govern- 
ment and upon the state, securing to the citizens of the 
union valuable and important rights.* 

Mr. Justice McLean, in the case for damages already 
referred to, intimated no change in his opinion, as to the 
permanent obligation of the compact, expressed in 
Spooner v. McConnell ; but seemed to think that the act of 
Congress was not in violation of the compact, but only 
an extension of the principle recognized in the compact 
to analogous cases. But I submit with great deference, 
that this very extension constitutes the violation. The 
compact prohibits all slavery, except in a certain class of 
specified cases. The act of Congress enlarges this 
exception, and of course, restricts the general rule of 
freedom. Surely this is impairing the obligation of the 
compact: and, if so, to this extent, the act is void. 

If, then, the interdict against slavery be of permanent 
obligation, unaffected by the admission of Ohio into the 
union ; if that interdict, on which the people of Ohio 
and the North west have hitherto reposed, be not delu- 
sive and vain : it cannot be doubted, it seems to me, that 
the act of 1793, so far as it authorizes the reclamation 
of servants escaping from the state of Kentucky, which 
is not one of the original states, must be held to be of 
no effect. 

The interdict against slavery is not the only clause of 
the compact violated by the act of 1793. There is not 
one of the guaranties of personal rights established by 
the ordinance, which is not, in my judgment, violated by 
this act. But I shall reserve what I have to say on these 
points, until I come to compare the act with the guaran- 
ties of personal rights, contained in the constitution. 



(1) Hulchinson V. Thompson, 9 O. R. 66. 



ACT OF 1793 UNCONSTITUTIONAL. 71 

I now reach the gravest and most momentous ques- 
tion in this important controversy: — 

Is the act of 1793 repugnant to the Constitution of 
the United States? 

I am met at the threshold, by the objection, that this 
question has already received the full consideration and 
final decision of this court, and is no longer an open 
question. But, with the greatest deference, I submit that 
no single decision of any tribunal, however exalted, upon 
a question of such high consequence as this, should be 
regarded as absolutely final and conclusive. I need not, 
I am sure, remind your honors, that the most thorough 
investigation, the clearest apprehension, and the largest 
learning, are not absolute safeguards against error. Even 
this court has found occasion, heretofore, to revise, quali- 
fy, and sometimes, overrule its former decisions: and I 
feel well assured that the enlightened judges, who now 
sit here, will not refuse to hear with patience, and con- 
sider with candor, an argument, urged, respectfully and 
in good faith, by the humblest member of the profes- 
sion, to induce them to recall any decision, however well 
weighed and unanimous, if pronounced after a single 
hearing. Especially will this Court listen to such an 
argument, when the opinion sought to be changed, was 
not unanimous; not necessary to the determination of 
the precise question before the court at the time; and, 
sustained by those who concurred in it, upon different, if 
not repugnant, reasons. 

The precise question before this Court, in the memo- 
rable case of Prii^g v. Pennsi/lvania, was this: — Are the 
statutes of the states, — which denounce as a crime, the 
abduction from their respective jurisdictions, of persons 



72 PRIGG V. PENNSYLVANIA, NOTICED. 

residing or being within tiiem, — unconstitutional, in their 
application to the masters and the agents and attorneys 
of masters, who remove fugitive servants by force, and 
without any sanction from the laws of the state or from 
the acts of Congress? In other words, — Does the Con- 
stitution of the United States, of itself and without legis- 
lation by Congress or the States, confer on the masters 
'of fugitive servants, the right, in person or by their 
agents, to retake them by force, in any state to which 
they may have escaped, and convey them out of such 
•state to that from which they fled, without process or 
judicial sanction; and are all laws of the states to pre- 
vent kidnapping or abduction by private force, unconsti- 
tutional and void in their application to such cases? The 
court held that the master of a fugitive slave may pur- 
sue and recapture him, and convey him out of the state 
in which the seizure is made, without complying with 
the provisions of the act of Congress or of the state 
laws on the subject, and that all state legislation making 
such seizure and abduction penal, is unconstitutional and 
void. 

It may be doubted, indeed, whether this decision 
can be (|uite consistent with the affirmation of the con- 
stitutionahty of the act of 1793. It would rather seem, 
if it was the intention of the framers of the consti- 
tution that the clause respecting fugitive servants should 
have the effect attributed to it, that they meant to dis- 
pense with legislation by Congress r-nd the states alto- 
gether: and this conclusion is greatl> strengthened by 
the fact that no power to legislate on the subject is con- 
ferred, unless by very remote implication, upon Congress, 
by the constitution. The opinion of Mr. Justice Bald- 
win, :indeed, went upon this ground. But, be this matter 



PRIGG V. PENNSYLVANIA, NOTICED. 73 

as it may, it is, at all events, quite certain that it was not at 
all necessaiy. in order to reach the decision to which the 
court came, to affirm the constitutionality of the act 
of 1793. 

No question, therefore, as to the constitutionality of 
that act was necessarily before the court in the 
Prigg case. Its constitutionality was indeed, affirm- 
ed; by some of the judges, as the exercise of a 
power vested exclusively in Congress; by others, as 
the exercise of a power concurrent in Congress and in 
the state Legislatures. One learned Judge, Mr. Justice 
McLean, held, that the act conferred an exclusive power 
on Congress, but dissented from the opinion that the mas- 
ter of a fugitive could exercise the power of recaption, un- 
der the constitution, in disregard of the provisions of 
the statute. He held, on the contrary, that for such acts 
the master was amenable to the criminal laws of the 
state, which he thereby violated. 

In no former case, I think, has so great a diversity of 
views marked the reasonings by which the several judges 
of this Court have reached their respective conclusions. 
Perhaps, also, it is not too much to say, that the decis- 
ion of the majority, both as to the right of recaption 
under the constitution, and as to the constitutionality of 
the act of Congress, has failed to command the assent 
of the profession, especially in the nonslaveholding 
states. The decision has been submitted to, as the 
judgment of the highest constitutional tribunal of the 
country; but submitted to, generally, in the hope and 
with the expectation, sometimes expressed and some- 
times silently entertained, of its ultimate reversal here. 

It is quite certain, also, as I think, that the right of 
reclamation, converted by the decision into a right of 



74 PRIGG V. PENNSYLVANIA, NOTICED. 

recaption, has not been fortified, but, on the contrary, 
seriously impaired by it. Tlie right is placed, by the 
opinion of the court, upon a ground, so repugnant to the 
feelings of all classes of men in the north and north- 
west, and so subversive of the sovereignty and indepen- 
dence of the states, that it encounters, at tliis moment, 
a degree of jealousy and hostility beyond all former pre- 
cedent. The presence of the slave hunter, ranging, 
at will, through the free states, and clothed with a power, 
above the control of state laws, and state constitutions, 
and state authorities, to seize and drag beyond state 
limits, without legal process, and without any judicial 
sanction, state or federal, persons, who, for aught that 
appears beyond his bare assertion, are as much entitled 
to the protection of the lav/ as he is himself, is a portent- 
ous anomaly, not to be contemplated without alarm and 
irritation. Every attempt to put this power into actual 
exercise, leads, and must necessarily lead, to commotion 
and violence ; and every scene of commotion and violence 
tends to gather around the right of reclamation an in- 
dignant public sentiment, which must, at length, deprive 
it of all practical value. It has been said, that, to the 
extent of giving the right of recaption, the constitution 
executes itself. It may be said, 1 think, with entire 
truth, that, upon the construction given, it not only exe- 
cutes itself, but the right of recaption also. If there can 
be a suicidal power, it is that of seizing, in a free state, 
persons claimed as fugitives from service, and taking 
them beyond its limits, by private force, and without judi- 
cial sanction. 

I proceed, without further delay, to state the proposi- 
tion which I shall endeavor to maintain. It is this: 



ACT OF 1793 UNCONSTITUTIONAL. 75 

The act of Congress of February, 1793, so far as re- 
lates to fugitives from service, is unconstitutional and 
void : 

1. Because the provisions of the act are repugnant to 
several positive provisions of the Constitution. 

2. Because the Constitution confers on Congress no 
power to legislate at all upon the subject. 

I insist, first, that the provisions of the act of 1793 are 
repugnant to several positive j)rovisions of the Consti- 
tution. 

In order to obtain a clear understanding of this matter, 
it will be necessary to advert to the circumstances of the 
country, and the state of public opinion, at the time of 
the adoption of the Constitution ; and it will also be 
proper to consider what slavery, as a legal condition, 
really is. 

It is thought, by some, that a leading object in the for- 
mation of the Federal Constitution was to secure to the 
citizens of the slaveholding states their rights of proper- 
ty in slaves. But what is there in the history of the 
country, or of the Constitution, to warrant such an 
opinion? On the contrary, does not that history prove 
that it was the clear understanding of all parties con- 
cerned in the establishment of the National Government, 
that the practice of slaveholding was inconsistent with 
the principles on which that government was to be 
founded? And that it was their settled purpose, — how- 
ever that practice might be tolerated or legahzed in 
certain states, with whose legislation the General Govt 
ernment could not interfere, — that it should receive no 
national sanction whatever? 



76 PUBLIC ACTS PRIOR TO THE CONSTITUTION. 

It seems to me that no unprejudiced student of our 
history can come to any other conclusion than this. 

The very lirst act of the first Congress of the Confed- 
eiation — the memorable non-importation, non-consump- 
tion and non-exportation agreement of that illustrious 
body — contained a clause, by which the delegates pledged 
themselves and their constituents to discontinue, wholly, 
the traffic in slaves. This clause has been offen quoted, 
but is of sufficient interest to justify its introduction here: 
''We Mill neither import nor purchase any slave im- 
ported, after the first day of December next. (1774,) after 
which time we will wholly discontinue the slave trade, 
and neither be concerned in it ourselves, nor will we hire 
our vessels or sell our commodities or manufactures to 
those who may be concerned in it." ^ 

Two years afterwards the Declaration of Indepen- 
dence was ])romulgated. No one will be willing to say 
that its language was not carefully considered, or that 
the patriot statesmen, who put their names to it. were 
liypocriies who sought to delude the world by empty 
flourishes of rhetoric. It wi'l be admitted that they 
were earnest men. who meant what they said. ^^ ell, 
tliese men. at that solemn moment, and in that solemn 
appeal to God and Mankind, diose \o put the'v cause 
upon the solid foundation of equality o+' rights among 
men. "We hold" they said, -these truths lO be self- 
evident; that all men are created equal: that they are 
endowed by their Creator with certain inalienable 
rights: that among these are Ufe. liberty, and the pur- 
suit of happiness.'' This declaration was put forth to 
the world as an expression of the deliberate judgment of 



(1) 1 American Archives, 914, 4ih Series: where the facsimile signatures of the 
delegrates may be seen. 



PUBLIC ACTS PRIOR TO THE COXSTITUTIOX. 77 

the American People. It was adopted and recognized / 
as its own act by every Colony which acceded to the / 
Confederation. It is not going too far, in my poor judg- / 
ment, to hold this declaration to be an authentic pro-/ 
mulgation of the common law of the Union in respect 
to the inviolability and inalienability of personal hbertV, 
and inconsistent with the longer continuance of slavery 
in any of the States. It is not impossible that such w4s 
the effect expected from it, by some, at least, of those 
who put it forth. Be this as it may. however, it seems 
to me quite certain that the language of the declaration 
is wholly inconsistent with the idea that the Americkn 
States, as One JYation, were expected, in any national 
act, or by any national document, to acknowledge tor 
endure slavery, as an institution fit to be fostered Ir 
sustained by national authority, \ 

When the war of the revolution terminated in the\ 
recognized independence of the repubhc, the Congress \ 
issued an address to the states, the leading object of 
which, was to persuade to tlie provision of a fund for 
the discharge of the pubhc engagements. Jn the con- 
clusion of this address. I find this passage, wh^ch I 
deem worthy to be considered in this connectiou: "Let 
it be remembered, finally, that it has ever been the pride 
and boast of America, that the rights for which she con- 
tended, were the rights o'' human nature.''" Whaiever 
else may be said of this, it camot be denied that it 
proves, beyond conc'-oversy, that the Declaration was in- 
tended to assert the right to hberty, not as vested in a 

(1) And wel'. worthy to be deeply pondered by every American, are these coaclu- 
ding sentences oi" this addiess: "In this view, the citizens Oi" the United States, are 
responsible for the greatest trust ever confided to a political society. If justice, good 
faitb, honor, gratitude and all the other qualides, which ennoble the character of a na- 
tion and people, and fulfil the ends of governmeut, be the fruits of our establishment, 
the cause of liberty will acquire a dignity and lustre it has never yet enjoyed ; and an 



/O PUBLIC ACTS PRIOR TO THE CONSTITUTION. 

^part of mankind only, but as inseparable from *human 
nature itself. 

Is it asked, Why did not the Congress of the Confed- 
eration, if it intended to assert the rights of all men to 
liberty, take measures for the abolition of slavery through- 
out the states? The answer is easy: The Congress 
possessed no powers adequate to that object. The con- 
federation was a league, rather than an union. The del- 
egates of the states in Congress had no powers, except 
those conferred upon them in terms by the Articles of 
Confederation, and those which resulted necessarily from 
the fact, that the Congress was the sole public represen- 
tative of the states, in their confederate capacity. The 
Congress, therefore, could not intermeddle with the do- 
mestic concerns of the states. It could announce princi- 
ples of justice and right, but it could give practical 
efficiency to them, as rules of law, only within territory 
subject to its exclusive jurisdiction. 

I have already directed the attention of the court to 
a signal instance, in which. Congress, having acquired the 
exclusive right of property and jurisdiction over the ter- 
ritory northwest of the Ohio, embraced with alacrity, the 
opportunity thus presented, of proving to the world the 
sincerity of its declarations. 

If any man be disposed to reproach the fathers of the 
republic with inconsistency and hypocrisy, in not giving 
practical effect to their declarations in favor of liberty 
and the rights of human nature, let him turn to the Ordi- 

exaniple will be set which cannot but have the most favorable influence on the rights 
of mankind. If, on the other side, our g-overnment should be unfortunately blotted 
with the reverse of these cardinal and essential virtues, the great cause which we 
have engaged to vindicate, will be dishonored and betrayed; the last and fairest ex- 
^periment in favor of the rights of human nature will be turned against them; and 
\heir patrons and friends exposed to be insulted and silenced by the votaries of ty- 
ranny and usurpation." 1 Mad. Pap. Jlpp. 11. 



EXPECTATION OF EMANCIPATION. 79 

nance of 1787, and be silent. By that great instrument 
the Congress of the Confederation dedicated that immense 
national domain to liberty forever, and thus, by one illus- 
trious act, manifested its own sincerity, and furnished a 
precedent for national action, in all future cases of like 
nature. By a single provision, the slavery, then existing 
in the territory, was abolished, and its future introduction 
was forever prohibited. And thus the Congress directly 
asserted, what it had before often indirectly declared, 
that slavery was incompatible with *' the fundamental 
principles of civil and religious liberty," which constitute 
the basis of American Government.^ 

These several national acts, it seems to me, supply 
conclusive proof that it was never intended that the 
American Nation, should be, in any sense, or in any 
degree, implicated in the support of slavery : but, on the 
contrary, that it was the original policy of the government 
of the United States, to prohibit slavery, in all territory 
subject to its exclusive jurisdiction, and to discoun- 
tenance it by the moral influence of its example and 
declarations, in the states and districts over which it 
had no legislative control. 

Nor is there, as it seems to me, any room for doubt 
that it was the general expectation, at that time, that 
slavery, under the influence thus exerted, would disap- 
pear from the legislation and the poHty of every state, at 
no very distant period. Evidences of this anticipation, 
and of the satisfaction with which the prospect was 



(1) All persons born in the territory are free. The ordinance fixed forever the 
character of the population in the region over which it extended. Martin v. Chex- 
naider, 20 Mart. La. Rep. 699. 

Under the ordinance of 1787 the right of the master of a slave escaped into the 
territory northwest of the Ohio, was the qualified right of reclaiming him and con- 
veying him out of the territory into one of the original states in which he owed in- 
voluntary service or labor. 4 Mart. La. Rep. 385. 



80 EXPECTATION OF EMANCIPATION. 

contemplated, abound in tlie writings of Washington, of 
Jefferson, of Martin, and otlier distinguished men of 
that era : and I am not aware of any single instance of 
the utterance of a different expectation in any quarter. 
Already, at the time of the promulgation of the ordi 
nance, had seven states abolished slavery, or taken 
decisive measures for abolishing it : and the admission of 
Maine and Vermont, as nonslaveholding states, was 
looked upon as certain. On the other hand, there were 
only seven states in which no measures had been taken 
for the removal of slavery; and, although the admission 
of Kentucky and Tennessee was anticipated, I am not 
aware that history [furnishes any warrant whatever, for 
saying that they were to come in as slaveholding states. 
On the contrary, the powerful public sentiment in 
favor of emancipation in Maryland, Virginia, and North 
Carolina, shared, — especially in Virginia and Maryland, 
by nearly all the most illustrious public men of the time, — 
would justly authorize a different expectation. But, 
waving this, and conceding, against the weight of evi- 
dence, that emancipation was not anticipated in any 
state south of Pennsylvania, and that every state south 
of the Ohio was expected to come in as a slaveholding 
state, it is still certain that the number of slaveholding 
states, within the limits of the United States, as they 
existed up to the close of the last century, could, in no 
event, exceed eleven. Under these circumstances, the 
promulgation of the ordinance, by which deliberate pro- 
vision was made, by the unanimous assent of all the 
states, for the admission ot five new nonslaveholding 
states, and, consequently, for the permanent ascendancy 
of the nonslaveholding interest in the councils of the 
confederacy, proves to me, beyond the possibility of 



SLAVEHOLDING NOT SANCTIOxVED BY THE CONSTITUTION. 81 

doubt, that it was not expected, at that time, that ^ 
slavery would be a permanent institution of any state. \ 

Such was the state of opinion at the time the consti- 
tution was h-amed; and the pages of Mr. Madison's 
report of the Debates in the Constitutional Convention are 
full of proofs of its influence upon the proceedings of 
that body. Every where we see the clearest evidence 
of deliberate purpose, to exclude all recognition of the 
rightfulness of slaveholding, and all national sanction to 
the practice, from every provision of the constitution. Mr. 
Madison, himself, declared that it was " wrong to admit 
in the constitution the idea, that there can be property 
in men.'" Neither the word ''slave," nor the word 
"slaveiy," nor any tenn equivalent to either, is to be 
found in the instrument; and the exclusion of these 
words, is a most emphatic censure of the practice 
represented by them. Even the word "servitude," 
as we have seen, was stricken out on the motion of 
Governor Randolph of Virginia, and the word "ser- 
vice " inserted in the clause relating to fiigitives from 
service, upon the express ground that the "former was 
thought to express the condition of slaves, and the 
latter the obligation of free persons." 

It is quite true that the constitution contains several 
clauses which were designed to refer to slaves ; but not 
one of them refers to slavery as a national institution, to 
be upheld by national law. On the contrary, every 
clause, which ever has been, or can be construed as re- 
ferring to slavery, treats it as the creature of state law, 
and dependent, wholly, upon state law, for its existence 
and continuance. Under the constitution, as under the 

(1) 3 Mud. Papers, 1429. 
L 



r. 



82 SLAVEHOLDmO NOT SANCTIONED BY THE CONSTITUTION. 

confederation, the national government was intended to 
be kept free from all connection with it ; without power 
to establish or continue it any where; but pledged by 
every public act of the nation, from the date of the 
assembling of the first Congress, in 1774, to exert its 
legitimate authority to exclude it from all national terri- 
tories, and to discourage it elsewhere, by the powerful 
influence of example and recommendation. 

A different doctrine has sprung up and found favorers 
since : but that doctrine is not the constitution. It is a 
pernicious parasite, rather, which, planted by the side of 
the constitutional oak, by other hands than those of the 
Founders of the Republic, and nurtured with mahgnant 
care, has twined itself around the venerable tree, and now 
displays its poisonous fruits and foliage from every branch. 

The Constitution: — 

Miraturque novas frondes, et non sua poma. 

I call upon this honorable court to restore the true con- 
struction of the charter of our union, by stamping 
with its decisive disapprobation, every attempt to intro- 
duce into it, what its framers studiously excluded from 
it, a sanction to " the idea that there can be property in 
men." 

The government of the United States, has nothing 
whatever to do, directly, with slavery. It may, indeed, 
and does recognize legal and political rights, growing 
out of the condition of certain persons, uncler the laws 
of the states, but it cannot, consistently with the letter 
or spirit of the constitution, regard these persons as 
slaves. Under the constitution, all the inhabitants of 
the United States are, without exception, persons, — 
persons, it may be, not free, — persons, held to service, — 
persons, who may migrate, or be imported, — but still, 
persons, clothed, so far as tlie constitution is concerned. 



SLAVERY AGAINST NATURAL RIGHT. 83 

with those highest attributes of personahty, which belong, 
of right and equally, unless the Declaration of Indepen- 
dence be a fable, to all men. The constitution takes no- 
tice indeed, of persons, held, under the laws of the 
states, in peculiar relations; but it takes notice of such 
persons, by its own descriptions, and not by those which 
state laws furnisli. It knows no slaves. 

What is a slave? I know no definition, shorter or 
more complete, than this: A slave is a person held, as 
property, by legalized force, against natural right. Sla- 
very is the condition in which men are thus held. The 
law, which enables one man to hold his fellov/ man as a 
slave, making the private force of the individual efficient 
for that purpose by aid of the public force of the com- 
munity, must necessarily, be local and municipal in its 
character.^ It cannot, speaking with strict accuracy, 
make men property, for man is not. by nature, the sub- 
ject of ownership. It can only determine that within 
the sphere of its operation, certain of the people may be 
held and treated as property by others. It can punish 
resistance to the authority of the master, and compel 



(1) All Jurists and Judges agree in this: 

Thus the Supreme Courtof Mississippi has said: "Slavery is condemned by reason 
and the laws of nature; it exists and can only exist through municipal regulations." 
And the court adds, referring to the claim of freedom, set up in the case before it: 
"Is it not an unquestioned rnle that, in matters of doubt, courts must lean infavo- 
rem vita et libertaiis." Harvey v. Decker, Walker's Miss. Rep. 36. 

The same court, in a later case, said : "The right of the master exists, not bv the 
force of the law of nature, or of nations, but by virtue only of ihe positive law of the 
State." State v. Junes, IValk. Rep. 85. 

The Court of Appeals of Kentucky has declared the same rule: "Slavery is sanc- 
tioned by the laws of this state, and the right to hold slaves under our municipal 
regulations is unquestionable; but we view thi^ as a right, existing by positive law, 
of a municipal character, without foundation in the law of nature or the unwritten 
and common law." Rankin v. Lydia, 2 A. K. Marsh. 467. 

The same doctrine has been recognized by the Supreme Court of Louisiana,— 
" The relation of owner and slave is, in the states of ihis union, where it has a legal 
existence, a creature of the n.unicipal law." Lvns/brd v. CoquiUun, 14 Mart 
Rep. 402. 



I 



1 1 

I 



84 LAW OF SLAVERY, STRICTLY LOCAL. 

submission to his disposal. But, if I may be allowed to 
introduce here the homely, but most forcible expression 
of the great poet of Scotland: — 

" A man's a man, for a' that." 

The law of the Creator, which invests every human 
being with an inalienable title to freedom, cannot be re- 
pealed by any inferior law, which asserts that man is 
property. Such a law may be enforced by power; but 
the exercise of the power must be confined within the 
jurisdiction of the state, which estabhshes the law. It 
cannot be enforced, — it can have no operation what- 
ever, — in any other jurisdiction. The very moment a 
slave passes beyond the jurisdiction of the state, in 
which he is held as such, he ceases to be a slave ; not 
because any law or regulation of the state which he 
enters confers freedom upon him, but because he con- 
tinnes to be a man and leaves behind him the law of 
force, which made him a slave. Even if the slave 
passes from one slave state into another, he is not held 
as a slave in the state to which he comes, by the law of 
the state which he has left. So far as that law is con- 



So,also, the Supreme Court of Massachusetts, has held: "Slavery is a relation 
founded in force, not in right, existing where it does exist, by force of positive law, 
and not recognized as founded in natural right." Commonwealth v. Aves, 18 
Pick. 215. 

These authorities might be multiplied without limit. I will add only a single pas- 
satce from the celebrated judgment in the case of the negro Somerset, — a judgment 
evidently delivered with great reluctance, but extorted by the conviction that noth- 
ing less would satisfy the demands of the common law, after a consideration seldom 
bestowed on a return to a writ of habeas corpus, extendetl from the 9th Dec. 1771, to 
22d June, 1772, and aided by two successive argumentsby tiie most eminent counsel in 
luigiand, — of whom it is enough to say that DunniiNG appeared for the return and 
IL\RGHAVE against it. The passage is this: "The state of slavery is of such a nature 
that it is incapable of being introduced by any reasons, moral or political, but only 
bv ])ositive law. it is so odious, that nothing can he suflVred to support it but posi- 
tive law. Whatever inconveniences, therej'ore, may follow frovi the decision, I 
CANNOT SAY, that this case is allowed or approved FY tfif. i,aw of England; and 
therefore, the black must be discharged." 20 Slate Trials, 75. 



LAW OF SLAVERY, STRICTLY LOCAL. 85 

ceraed, he is free ; for he is beyond its reach. He may 
remain enslaved, or, more properly speaking, he may be 
re-enslaved under the law of the state he enters : or, 
that law may refuse to recognize the relation imposed on 
him by the foreign law, and then he will be absolutely 
free. There are familiar examples of this, in many 
slave states. The law of Virginia does not permit the 
enslavement of native American Indians brought into 
that state since 1691. Such a person, therefore, though 
a slave in another state, becomes free, on being brought 
into Virginia, for the law which enslaved him cannot 
follow him there.^ So, also, in other slave states, slaves 
brought into them, under certain circumstances or for 
certain purposes, become free. The law of the state, 
into which they are brought, refuses to lend its aid to 
their enslavement, and the law of the state, whence they 
came, cannot reach them, having no force in another 
jurisdiction. 

If I am correct, then, in the position that the Gov- 
ernment of the United States, cannot, under the consti- 
tution, create, continue, or enforce any such relation as 



(1) Butt V. Rachel, 4 Mun. 211. Hudgins v. Wright, 1 Hen. Sf Mun. 133. 
The first of these cases was argued by those eminent lawyers, Messrs. Wickhaiu and 
Wirt ; the latter of whom the writer is happy to acknowledge as his instructor in the 
law. They both agreed that slavery is an institution of positive law alone. The 
second is that memorable case, in which Chancellor Wythe endeavored, as almost the 
last act of his illustrious life, (for he died, January 8, 1806, and the cause was not 
heard on the appeal from his decision, until November 7, 1806,) to establish, upon 
the authority of the Constitution of Virginia, the common law presumption in favor 
of freedom, in that state. "Upon the ground that freedom is the birthright of' every 
human being, which sentiment is strongly inculcated in the first article of the Bill 
of Righs," he laid it down as a general position that " whenever one person claims 
to hold another in slavery, the onus probandi lies on the claimant." The Court of 
Appeals sustained the decision of the Chancellor, but disapproved of his "principles 
and reasonings, except so far as the same related to white persons and native Ameri- 
can Indians," without however attempting to shew that the doctrine was not clearly 
and necessarily inferrible from the Bill of Rights. 



86 CONSTITUTION SPEAKS OF SERVANTS, NOT SLAVES. 

that of owner and property, or, — what is, under the slave 
codes, the same thing, — of master and slave, between 
man and man, it must follow that no claim to persons as 
property can be maintained, under any clause of the con- 
stitution, or any law^ of the United States. 

The clause in relation to fugitives from service is no 
exception to this remark. 

Indeed, it may well be doubted, wliether the majority 
of the convention regarded the clause as applicable, at 
all, to escaping slaves. The delegates from no state, 
except South Carolina, appear to have been anxious for 
any provision of the kind. And after it was introduced, 
various amendments were made, as we have seen, with 
the express purpose, of excluding any implication that 
slavery was '• legal in a moral point of view,'' and of 
adapting the language of the clause to "-the obhgations 
of free persons," and not to '•the condition of slaves." 
It requires no great boldness, with the support of these 
facts, to aflirm that the clause should be construed as 
providing only for the enforcement of the "obligations of 
free persons, "and not for reconsigning men to the ""con- 
dition of slaves." 

Not insisting on this, however, nor waiving it, it seems 
to me quite certain, that this clause takes up and deals 
with no other relation than that of master and servant. 
It contains no recognition whatever, of any right of 
projierty in man. It establishes no rule in relation to 
negro or mulatto servants, which does not apply equally 
to white servants held by law. If, under the clause, a 
fugitive slave may be reclaimed, it is, not because he is 
a slave, but because he is a person held to labor. In 
that character, and only in that character, can he be 
reclaimed. After he has been brought back to the state 



ACT OF 1793 UNCONSTITUTIONAL. 87 

where he was held to service, he resumes the condition, 
w^hether of ser\"ant, apprentice, involuntary servant, or 
slave, in which he was held prior to his escape : but 
while out of the state he is as free as any other person 
until reclaimed. 

It follows from this, that any provisions which would 
be unconstitutional, in their application to other persons, 
are equally unconstitutional, in their application to es- 
caping servants. Any immunities secured by the con- 
stitution to "persons" without distinction, belong, of right, 
to '• persons " escaped from service. 

So far as the act of 1793 authorizes the reclamation 
of servants, escaped into the territories of the United 
States, it is clearly unconstitutional. If a citizen of a 
territory cannot sue or be sued in the courts of the union, 
as a citizen of a state, — surely a person, escaped into 
a territory, cannot be reclaimed, under a clause, which 
authorizes, only, the reclamation of persons escaped 
into a state. It seems highly probable that no pro- 
vision for the reclamation of servants escaping into 
a national territory was made, because the ordinance 
had already provided for such reclamation as to servants 
escaping from the original states. And this is made 
almost certain by the fact, that the constitution and 
the ordinance are almost contemporaneous documents, 
and the provision as to reclamation in the former, was 
taken, substantially, from the latter. 

So far, also, as the act" of 1793 undertakes to confer 
judicial powers on state magistrates, it is clearly void. 
The judicial power of the union, cannot, except in open 
breach of the constitution,^ be conferred on courts, not 

(1) Martin v. Hunter's Lessee, 1 Wheat. 304. 



88 ACT OF 1793, UNCONSTITUTIONAL. 

ordained and established by Congress, but ordained and 
established by state Legislatures; — not responsible to 
the general government, but responsible to the states 
only. 

Besides, Congress, under the constitution, can appoint 
no federal officers whatever. By the second section 
of the second article it is made the duty of the Presi- 
dent of the United States, with the advice and consent 
of the Senate, to appoint all judicial officers. Congress 
may, indeed, vest the appointment of inferior officers in the 
President alone, or in the courts of law, or in the heads 
of departments ; but it can retain no such power to itself. 
Yet, if this act be constitutional, Congress can appoint 
federal officers, by thousands, at a breath ; for, by this act, 
all, who then were or might afterwards become magis- 
trates of counties, cities, and towns corporate, are consti- 
tuted judges of the United States, with a vast and most 
important jurisdiction. It were mere waste of words to 
argue that the act, to this extent, must be unconstitu- 
tional. It is true that this court in the Prigg case, held 
that, in relation to claims of fugitives from service, state 
magistrates may act: but your honors were careful not 
to affirm that the state magistrates were clothed, by the 
law, with any judicial authority. If state magistrates 
act, their action must be justified, if at all, upon the 
ground that they are the auxiliaries of^ the master, in ex- 
ercising the 'power of recaption., not under the law, but 
under the constitution. The magistrate must derive his 
authority from the master, not from the act of Congress. 

I submit, further, that the act is unconstitutional, in 
all its leading provisions. 

It authorizes seizure and confinement, by private 
force, without legal process. But the third clause of the 



ACT OF 1793, UNCOxVSTITUTIONAL. 89 

fifth amendnient of the constitution is in these words, 
"No person shall be deprived of life, liberty, or property, 
without due process of law." It is vain to say that the 
fugitive is not a person : for the claim to him can be 
maintained only on the ground that he is a person. It is 
vain to say that the amendment did not regard fugitives 
from service as persons within its intendment. Not only 
is there no authority for any such assertion, but it is 
directly contradicted by historical documents. The 
recommendation for this amendment came from Virginia, 
and, as proposed by her legislature, it provided that 
"no free man shall be deprived of life, hberty or 
property, but by the law of tiie land."^ Congress 
altered this phraseology, by substituting, for the words 
quoted, these: "No person shall be deprived of life, 
liberty, or property, without due process of law." Now, 
unless it can be shewn tiiat no process of law at all, is 
the same thing as due process of law, it must be admit- 
ted that the act which authorizes seizure without process, 
is repugnant to a constitution which expressly forbids it. 
And this right to seize, and hold, and take before a 
magistrate constitutes the very essence of the act. 
Without this right, the act is of no avail whatever. If 
it fails in this, it fails altogether. 

Mr. Justice Story, delivering the opinion of a majority 
of the court, intimated, in the Prigg case, that the mas- 
ter of an escaping servant might, at common law, retake 
him and reconvey him to the place whence he escaped, 
in the exercise of the right of recaption."- The learned 



{1) Consult 2 Elliott's Debates, 483, for the amendment as proposed bv Virginia: 
also, 4 Elliott's Debates, 216, for the same amendment, as proposed by Xew York, 
nearly in the terms in which it %vas finally adopted. (2) 16, Peters 613. 

M 



90 NO RIGHT OF RECAPTION AT COMMON LAW. 

Judge relied upon the authority of Blackstone; and 
Blackstone, in support of the proposition which he lays 
down, refers to no other authority than Roll, a reporter 
and author of the time of James the First, in the fif- 
teenth year of whose reign, the last case of villeinage 
came before an English court/ This, certainly, is not 
the highest authority for the middle of the nineteenth 
century, and for a country whose institutions are founded 
on the doctrine of personal liberty. But it seems to me 
quite clear that Blackstone never intended to sanction 
the doctrine imputed to him. He is speaking of the 
case where one has deprived another of his servant and 
wrongfully detains him, and not of an escaping servant 
at all. His obvious meaning is, that, in the case he puts, 
the master may retake the servant, with the servant's 
assent. The condition, by which he limits the right 
of recaption, proves this: The master may retake, "so 
it be not in a riotous manner, or attended with a breach 
of the peace."^ And where was it ever held, since the 
days of villeinage, that it is not a breach of the peace in 
England, for a master to seize a servant, and compel him 
by force, to return to a service, which he has left? I af- 
firm, boldly, that there is no such right of recaption, as 
is claimed, at common law, and no such right has been 
recognized in England since the days of villeinage. Mr. 
Hargrave, in the case of Somerset, stated, as an undenia- 
ble proposition that " the laws of England will not allow 
the servant to invest the master with an arbitrary power 
of correcting, imprisoning or ahenating him."^ And 
there can be no recaption, against consent, without impris- 
onment. And Lord Hobart says: "The body of a free- 



(1) 20 State Trials, 41. (2; 2 Black. Com. 4. (3) 20 State Trials, 50. 



ACT OF 179.{, UNCONSTITUTIONAL. 91 

man cannot be made subject to distress or imprisonment, 
by contract, but only by judgment."^ Certainly the consti- 
tution did not intend to confer any right of recaption on 
the masters of escaping servants, for every such recap- 
tion is a seizure and imprisonment without process, which 
the constitution expressly forbids. 

But the amendment, prohibiting imprisonment or other 
privation of liberty, without process, is not the only 
clause of the constitution infringed by this act. It is 
equally repugnant to that provision, which declares that 
" the right of the people to be secure in their persons 
* * * against unreasonable searches and seizures shall 
not be violated." I ask, how can the people be subjected 
<^.to seizures more unreasonable, than under this act of 
Congress ? Even upon the unwarrantable assumjDtion that 
the escaping servant has no rights, the act still violates 
this provision of the constitution. The claimant must 
necessarily select the object of seizure. He is not 
confined, by the act, to negroes, nor to slaves. He may 
seize any one, whom he chooses to claim as an escaping 
servant, and take him before a judge, or a magistrate, 
without authority except as the claimant's agent. He 
may be mistaken. He may intend to kidnap. No mat- 
ter, he may seize, confine, transport; being responsible 
only in an action for a wrongful taking, if his victim shall 
ever be fortunate enough to find an opportunity to bring 
one. Surely, an act which authorizes seizure by private 
force, upon mere claim, violates that security from un- 
reasonable seizure, which the constitution guaranties to 
the people. 



(1) Hob. 61. In Tennessee, even as to slaves, the right of recaption does not 
exist. Mr. Justice Catron, then Chief Justice of Tennessee, terms it "the exploded 
doctrine of recaption." Marshall y. Pennington, Z i'er?- 431- See also, 1 CW^ 
/i/'» General Prac. 640. 



92 ACT OF 1793, UNCONSTITUTIONAL. 

The constitution, also, declares that, "In suits at com- 
mon law, where the value of the matter in controversy, 
shall exceed twenty dollars, the right of trial by jmy 
shall be preserved." Of what value is this provision, if 
Congress may, by legislation, provide a mode, in which 
every man, may, at the option of a slave claimant, be 
put upon trial of his liberty without a jury.^ \^ ill it be 
said, that the value of a man or of his liberty is not men- 
surable by a pecuniary standard, and, therefore, that the 
constitutional guaranty does not apply? I answer, that 
if Congress cannot authorize the less, surely it cannot 
authorize the greater aggression upon individual right. 
Or, will it be said that the proceeding is not one at com- 
mon law? I reply, where did Congress obtain the au- 
thority to authorize the enforcement of claims to servi- 
ces, in a mode at variance with the course of the com- 
mon law? Not certainly from any grant in the constitu- 
tion; for, not only does that instrument contain no such 
grant, but it expressly prohibits the mode of enforcing 
the claim, which Congress has adopted, namely, impris- 
onment without process. I insist, therefore, that Con- 
gress has no power to authorize the seizure and trial of 
any person without a jury. If Congress has such power 
in this case, then, in every other, where the constitution 
confers or guaranties a right. Congress moy, without re- 
gard to constitutional restriction or limitation, adopt its 
own mode of enforcing that right, and the jjeople must 



(1) An act of the Legislature of Kentucky provided, that negroes and niulattoes 
coming or being brought into the state, should be arrested, and if, upon trial before 
the county court, it should appear that they came into and continued in the state, 
contrary to law. they should be required to give bond for removal, and on failure, 
should be sold for one year. It did not require the intervention of a jury, and the 
Court of Appeals, for this reason and to this extent, held the act to be unconstitution- 
al. Doram v. Commonwealth, 1 Dana, 331. 



LEGISLATION AGAINST RIGHT. VOID. 93 

submit. If this be so, the constitution is waste paper. 
and we Uve under a despotism. 

The provisions of the constitution, contained in the 
amendments, hke the provisions of the ordinance, con- 
tained in the articles of the compact, were mainly de- 
signed to establish as written law, certain great princi- 
ples of natural right and justice, which exist indepen- 
dently of all such sanction. They rather announce re- 
strictions upon legislative po\\er, imposed by the very 
nature of society and of government,^ than create re- 
strictions, which, were they erased from the constitution, 
the Legislature would be at liberty to disregard. No Leg- 
islature is omnipotent. No Legislature can make right 
wrong; or wrong, right. No Legislature can make liglit, 
darkness; or darkness, light. No Legislature can make 
men, things: or things, men. Nor is any Legislature at 
liberty to disregard the fundamental principles of recti- 
tude and justice. Whether restrained or not by con- 
stitutional provisions, there are acts beyond any legiti- 
mate or binding legislative authority. There are certain 
vital principles, in our national government, which will 
ascertain and overrule an apparent and flagrant abuse 
of legislative power. The Legislature cannot authorize 
injustice by law: cannot nullify private contracts; cannot 
abrogate the securities of life, liberty and property, which, 
it is the very object of society. ?.s well as of our consti- 
tution of government, to provide; cannot make a man 
judge in his own case; cannot repeal the laws of nature; 
cannot create any obhgation to do wrong, or neglect du- 
ty. No court is bound to enforce unjust law; but. on 



(1) Per Marshall, C. J. in Fletcher y Peck, 2 Cond. Rep. 421. 



94 LEGISLATION AGAINST RIGHT, VOID. 

the contrary, every court is bound, by prior and superior 
obligations, to abstain from enforcing such law. It must 
be a clear case, doubtless, which will warrant a 
court in pronouncing a law so unjust that it ought not to 
be enforced ; but, in a clear case, the path of duty is 
plain. I rejoice that I have the sanction of this Court 
to all these positions. I rejoice that I am able to add, 
that much of the language, in which I have stated them, 
is taken from one of its judgments.^ 

I see not how the judicial enforcement of the claim to 
property in man can be at all reconciled with these 
principles; for that claim is admitted by all jurists, and 
by none more emphatically, than by those distinguished 
lawyers, whose opinions I have cited from the reports of 
slaveholding states, to be, not only unsupported by, but 
directly against natural right.- 



(1) Colder V. Bull, I Cond. Rep. 173. See also, Divarris on Statutes, U. All 
writers agree that there is a rule of right, which is of superior obligation to every 
human law. It is called by Aristotle, 'O ncm; vofAOc; and I submit two transla- 
ted extracts from his writings, as descriptive of it. "The law of nature" 
he says, "is inflexible and has always the same force; as fire burns alike 
here, and among the Persians." Rhet. B. 5, c. 10. "For what all men divine is 
true," he says in another place, "that, by nature, there is a common rule of right 
and wrong, which has its origin in no common consent, or compact among men." 
Rhet. B. 1, c. 13,15. 

Cicero speaks frequently of this law: "Est vera ratio, naturie congruens, diffusa 
in omnes. constans, sempiterna."-"Est recta ratio, numine deorum tracta, impe- 
rans honesta, et prohibens contraria."— "Lex vera atque princeps, apta ad jubendura 
et ad vetandum, ratio est recta summi Jovis." 

An eminent christian moralist and divine, thus states the same truth : "The law of 
nature is the only rule and measure of all laws." Jeremy Taylor's Works, Vol. 3. 
pp. 197 and 212. 

And an Apostle sums up the whole matter in these words: "We ought to obey 
God rather than men." Acts 5, "2.2. 

(2) It will be observed that I do not rely on the authority of doctors of theology, 
for an account of the nature of slavery. I prefer that of jurisprudents, accustomed 
to consider questions of right and justice. It will, in futu.e times, be regarded, 
doubtless, as a melancholy proof of the corruption of religion in our day, that it 
ministers were so often found among the justifiers and advocates of slavery; and it 
will be looked upon, probably, as "evidencing, (I use tbe words of Judge Read, of 
the Supreme Court of Ohio,) a sort of moral insanity, a breaking up as it were, of the 
faculties to perceive ordistinguish moral truth." See 2 West. Law Jour. 286. 



ACT OF 1793, AGAINST RIGHT. 95 

However this may be, 1 cannot doubt that the act 
of 1793, and much more the law of recaption, which 
has been thought to be contained in the constitutional 
provision relating to fugitives from service, fall within 
the very terms of one of the descriptions of unauthori- 
zed legislation given by this court, in Calder v. Bull; for 
they make a man the judge in his own cause, and, even 
more, the executioner of his own sentence. The act of 
1793 authorizes the claimant to seize the defendant, 
without process ; to take him, by force, before any magis- 
trate he may select ; to hold him, by force, while the magis- 
trate examines the evidences of claim ; to remove him, by 
force, when the certificate is granted. The defendant, 
thus seized and held by force, has no rights, under the 
law. The act affords him no opportunity to adduce evi- 
dence, and imposes no duty on the magistrate to hear 
it, if adduced. On the other hand, the claimant is al- 
lowed to make out his claim by affidavits, which, taken 
by himself and without cross examination, will always 
be partial, and, often, false. And, upon such evidence, 
while the defendant is under such . duress and without 
any right to be heard, the magistrate is to decide. To 
complete the atrocious business, and leave no semblance 
of justice whatever to the transaction, the magistrate is 
entitled to no compensation for his services, under any 
law, state or federal; but is left to make such bargain 
with the claimant as he may. What is this, but to make 
the claimant, judge, jury and sheriff in his own cause, and 
to establish his will as law? What is it but to legalize 
assault and battery, and private imprisonment? I say 
fearlessly, that such acts of legislation as this, are sub- 
versive of the fundamental principles, on which all civil 
society rests. Let such acts be passed in relation to 



96 ACT OF 1793, UNCONSTITUTIONAL. 

other claims. Let every man be authorized to enforce 
his demands in this summary manner. If he finds a 
horse, which he thinks his, in the possession of another, 
instead of resorting to due process of law, and the old 
fashioned replevin, let him seize the animal, take him 
before his own hired magistrate, and prove his claim by 
affidavits. If he claims the services of another, which 
which that other will not perform, instead of suing him 
for breach of contract, let him drag his reluctant neigh- 
bor before his magistrate, establish his claim, and then 
remove him to his task. How long would society hold 
together, if this principle were carried into general ap- 
plication ? 

But I am not obliged to resort to any general principle 
of the natural law, however firmly established. I find 
firm footing in the constitution, and I take my stand upon 
its express provisions. The American People, speak- 
ing through the constitution, have forbidden Congress 
to enact, and this Court to enforce any law which 
authorizes unreasonable seizures, or privalion of liberty 
without due process of law. This prohibition, in my 
humble judgment, nullifies the act of 1793. 

A single proposition remains to be considered. I 

shall maintain that the act of 1793 is void, because 

Congress had no power at all to legislate in relation to 
escaping servants. 

I have already shown that (he right of recaption, 
exercised upon servants against their will, had no ex- 
istence at common law, at the time of the adoption of 
the constitution. It is onlf necessary to add here, that 
if the right existed, as to servants, in any of the states, 



FUGITIVE SERVANT CLAUSE, HOW CONSTRUED. 97 

it could not be enforced in other states, or in national terri- 
tories, being a right dependant on local law, and incapa- 
ble of being extended into another jurisdiction. It is 
certainly incumbent, then, on those who claim, that, by 
the constitution, the general law and presumption in 
favor of liberty are set aside to give room for this right of 
recaption, to make out a clear case, and produce express 
words. Far from doing this, however, they are able to 
shew no intimation of any such right in the constitution ; 
while, on the contrary, we produce an express prohibi- 
tion against the exercise of any such power, under any 
act of Congress. 

What, then, is the true construction of the constitu- 
tional provision in relation to escaping servants? 

I insist, most respectfully, but most earnestly, tliat the 
whole clause shall be interpreted by the ordinary rules 
of construction, applicable to all provisions of the con- 
stitution. It seems to me indefensible, "in order to 
clear the case of difficulty,"^ to adopt a special rule of 
interpretation for this particular clause. It seems to me, 
impossible, after a dehberate consideration of the facts 
of history, and of the most authentic account" of the 
circumstances which attended the incorporation of the 
clause into the constitution, to maintain that the object 
of the provision was "to secure, to the citizens of the 
slaveholding states, the complete right and title of 
ownership in their slaves, as property, in every state 
of the union into which they might escape from the 
state where they were held in servitude." Nor have I 
been able to discover any historical warrant, or any 
warrant of any kind, for the statement, that the clause 
in question "constituted a fundamental article, without 
^ 

(1) 16 Peters 610. (2) See Madison Papers, cited ante p. 40. 
N 



9M 



KIKMTIVK SKIIV VNI' Cl.Al ISK, HOW CONSrUU KP. 



\\\v. !i(l()|)(ioii of wliicli, i1h> union coiilil not liuvo been 
lornicd. " 

'VUv provision is, iMulonhlcdly, in rcshainl of liluMly, 
;,,i(| II is lo l)c conslincd strictly. ( >n(< of tlic Iciulinji; 
ol)|(Mls of llu> constitution itself was to sccurr [XMsonal 
firrdoin : and cwvy particular claus(\ in d(M(v-;ation of 
this nrn(M;d ohjccl, should he restrained with.in the plain 
and necessary import o( its t(Mins. In oah-r lo ascer- 
(;,iii the line sense o\' any clausi", ihe w hol(> of it should 
he i;ik(Mi touether. No rule of intcapretntion should be 
applied, \\hi(di will not he rei;;irded as valid, when occa- 
sion may reiiuire, in the consliuction ol every other. 

I suhmil that these are the true principle's upon which 
the provision (•oncerniui;- fui^itives from service should he 
construed, and shall end(>avor to asciatain its true import, 
lis to tlH> mode of reclamation, hy tlu>iraid. 

TaUini;- th(> wholt> ( laus(> toilet her, and (>\aminini:, it 
ill ilu> liij,ht of history, I cannot doubt that th(> intention 
was, lo impose the duty of i;ivini; effect to the rii;ht of 
rcMlamalion, upon tlu> slatt>s. I would willingly think 
otherwise. All, or nearly all, llu> citi/.ens of the free 
states would, I doubt not,iiladly leav(> the whol(> rc^spon- 
sibilitv of lei;islation, upon this subject, to Coniiiess. But, 
lookiui; at the tca-ins o( tlu> pnn ision, and comparmii it 
with similar provisions then in t>\istence, it seems to me 
(d(>ar, that Con^rc'ss cannot, consifiitionally, lei;islat(> 

upon it. 

The j';reat purpose o( the franuMS o( the constitution 
was to (Mvate a national ;;o\ (MimuMit, ami ci)iifer upon it 
ade.iual(> powcas. A st-condary purpose was io adjust 
iuu\ setll(> cialam matters of ri-hl and duty between the 
stales, and b.Mw(>en the citi/.ens o( different states, by 
piaiuanent stipulations, havini;- tlu> forc(> aiul ellect ol 



KlCiriVF. bKR\ A.N r » I.AISK, A Cl.Al SK OK I OMl'Al 1. 99 

Treaty oblii;aiioiis.' Roili objons weiv ncroinplishetl. 
The ooiisiiiuiion establishes a iiovernment. lieelares its 
principles, defines its sphere, preseribes its duties, aiul 
confers its iHn\ers. It also establishes eeitain artieles of 
compact or aiireeiuent betw ecu the states. It preseribes 
certain duties, to be i)erf'ornu\l by caeli state and its citi- 
zens, towards every other state and its citizens : and it 
coalers lUMiain rii^hts upon each state and its citi/.ens. 
and binds all the states to the recoi;nition and entbrce- 
nieni ot" these riiihts. Tliese ditVerent ends of the 
constitution. — the creation o\ a iiovernnieni and (he 
establishment of a compact. — are entirely distinct m their 
nature. It all the idauses ot' compact in the ciuistiliiiion 
were stricken out. the iiovernment crcatcii by it would 
still exist : and. if' the articles ami sections esial)hshini;- a 
iorni ot" ^o\criimcnt were abrogated, the clauses of" com- 
pact mii;hi still remain in force, as articK^s of' aurcrMncnt 
amouii- the states. 'I'he clauses i^t" compact center no 
powers on the i^ovcrmucm : auil the pin\ ers of jiiuern- 
ment cannot he executed, except in virtue ol" express 
pmvisions. to enlorcc the matters of" com[iact. 

The clause, in relation to f\ii:iti\(>s fVom stavicc.is noih- 
ino- else than a covenant or compact, bciwt^en the states.' 
It has nothiiiii-. whatever, to do with the creation of a 
i^mcrnment, and it coalers uo (unviMs. whatever. upiMi tlu^ 
iiovcrnmem creatcil by other provisions. It declares that 
iu> person, held to ser\ ic"c in any state undcM- its laws, 
escapino- into another, shall be discharued from the ser- 
vice, to which he was thus held in the state iVom which 
he tlt\l. but shall he (\c\i\ch\\ up. o\\ claim o[ lUc party 
\o whom the ser\ ict> may he iluc. U restrains tlu> ope- 

(1) CommonirealtK v. .;»..«. 18 Pick: 220. wh.-.v this vi.MN i, ». t (.nth with cW^r- 
nrss Hu«t foi>('o. 



100 FOUR rONSTITl'TIONAI, CLAISES OF COMPACT. 

ration of stale laws in a particular class of cases, and 
it obliges each state to the performance of certain duties 
to the citizens of other states. It is, in the strictest 
sense, a clause of compact ; and tlie natural, if not 
necessary, inference from its terms, seems to be that its 
execution, like that of other compacts, is to he left 
to the j)arties to it. 

Four similar clauses stand, in juxtaposition, in one 
article of the constitution. The first stipulates that full 
faith shall be pjiven in each state, to the public records 
and judicial proceeding's of every other state: the sec- 
ond, that the citizens of each state shall enjoy the 
immunities of citizens, in the several states: the third. 
that persons, charged with crime in any state and fugi- 
tive from justice, shall, if found in any other state, be 
delivei'ed up, on demand of the executive authorities of the 
state from which they fled: the fourth, is the clause under 
consideration. There are clauses in other articles which 
prohibit the exercise of powers by the states: but there 
are no others, I believe, in the constitution, as originally 
adopted, intended to secure positive rights to the citi- 
zens of each state in all the states. This circumstance 
is entitled to weight in determining the character of 
these provisions; and, it certainly points to the conclu- 
sion, that they are in the nature of treaty covenants, 
provision for the execution of which is to be made by 
the legislation of the parties. This conclusion is, 
indeed, excluded as to the first of them, by an express 
provision that C(Migress may legislate: but the omission 
of a similar provision in connection with the others 
mightily confirms my position as to them. W liy make 
the i)rovision as to the first clause, and omit it as to the 
other three? It must have been floiie delib( ratelv and 



FOl'R CONSTITUTIONAL CLAUSES OF COMPACT. 1 1) I 

of purpose. Why do it, unless the convention (fcsi'o-ncd 
that Con<;ress might legislate in reference to records, hut 
}wf in reference to the rights stipulated for in the other 
clauses? And is not the reason for the distinction plain? 
Would not the convention naturally give power to pre- 
scrihe the proof and elVect of records, which could not 
affect the personal liberty of the citizens? — while they 
would scrupulously" abstain from giving any such jiower 
in regard to the subjects of the other clauses, because 
its exercise would necessarily interfere with the great 
first right and duty of the State Governments to protect 
the rightful claims, to personal liberty and security, of all 
persons within their several jurisdictions. 

Another circumstance deserves to be seriously consid- 
ered. All the provisions I have just enumerated, were 
taken, with modifications, from instruments in which they 
stood, without question, as clauses of compact, and noth- 
ing else. The provisions in relation to records, to immu- 
nities, and to fugitives from justice, were taken from the 
Articles of Confederation.' The provision in relation to 
fugitives from service, was taken from the Ordinance of 
1787." What evidence is there that the Convention, 
when it transferred these clauses from the Articles and 
the Ordinance into tiie Constitution, had any intention to 
change their nature. Standing where they did, they 
conferred no power on the general government; what 
reason is there for holding that they confer such power, 
standing where they now do? The clause in relation 
to records, as it stood in the articles, included no provis- 
ion authorizing legislation by Congress The Conven- 
tion, on transferring the clause to the constitution, appen- 



(1) See Articles of Confederation, Art. 4, in 3 Ston/'s Laws, 2079. (2) See the 
Ordinnncp, ^ Sfori/'s Laws, '2078. 



102 POWER TO LEGISLATE XOT CONFERRED BY GENERAL GRANT. 

ded a provision authorizing such legislation; but they 
appended no such provision to the other clauses. Ex- 
pressio nnius. exdusio est altcrius. I see not how the 
inference can be resisted, that it was not the intention 
of the Convention to authorize legislation by Congress 
on the subjects of the other clauses. 

There is another, and wholly independent reason for 
denying the constitutional competency of Congress to 
legislate in regard to fugitives from service. The whole 
legislative power of Congress is derived either from the 
general grant in the eighth section of the first article of 
the constitution, or from special provisions in relation to 
particular subjects. We have already seen that there 
is no special provision authorizing the legislation in c[ues- 
tion : we must look for such authority, then, in the gen- 
eral grant. That grant is in these words: "Congress 
shall have power * * * to make all laws, necessary 
and proper for carrying into execution all the powers 
vested by the constitution, in the government of the 
Lnited States, or any department, or officer thereof." — 
It is quite certain that the clause, relating to fugitives 
from service, vests no power in the national government 
or any of its departments, or officers. How then can 
the conclusion be avoided, that Congress has no power 
to legislate on this subject? 

It is urged in the opinion delivered by Mr. Justice 
Story, that this is too narrow a view of the power ol 
Congress; and various examples are given of legislation 
by that body, in cases where no legislative power has 
been directly conferred upon it. But it will be found, I 
think, that every example fails to sustain the view ot 
the constitution, in support oi \\\\\c\\ it is adduced. — 
Acts of apportionment, acts to carry treaties into effect. 



PRIGG V. PEVXSTLTAyiA, EXAMINED. 103 

and acis to secure the privileges (rf members of Congress, 
acts to suspend the writ of habeas corpus. — all come 
under the head of laws, necessaiy and proper for carrr- 
ing into execution, powers vested in the government, or 
its departments, or officers. Nor is it going too tar to 
sav. that where a duty is enjoined upon the government, 
or its departments, ot its officers. Congress may. by leg- 
islation, provide Iot its performance. Where the consti- 
tution enjoins a duty, it is a necessary inference that it 
gives power to perform iL But the difficulty is. that the 
fugitive servant clause does not purport to ccmler a pow- 
er, or enjoin a duty, on the general government, or any 
of its departments, ot officers. 

The opinicffl. indeed, goes farther, and maintains mat 
Congress may provide for the allowance and execution of 
of the writ of habeas corpus, when not suspended, and gen- 
erally, that where a right is expressly given, or a duty ex- 
pressly enjomed by the constittrcioo. Congress may legis- 
late for the protection of the right or enforcement of the 
duty.^ Upon no ground, narrower than this, can the right 
of C<«igress to legislate for the reclamation of escaping 
servants be maintained. Bui the powers of Congress 
have not hitherto been supposed to be so extensive. — 
If they are. they certainly warrant the legislation in 
question, and much more. Congress may, in the exer- 
cise of these powers, nullify any state legislation which 
the constituucw forbids. It may. and should, imder the 
clause which secures to the citizens of such state the 
immunities of citizens of all the states, enforce, in Sooth 
Carolina and Louisiana, the rights of the negio chizeos 
of Massachusens, and the quadrooo citizens of Ohio. 



104 CONTEMPORARY CONSTRUCTION, WHAT WEIGHT DUE TO IT. 

It may, also, and should, under the clause which forbid, 
privation of liberty, without due process of law, provide 
for the abohtion of slavery throughout the United States. 
If the premises, furnished by the opinion of Mr. Justice 
Story, are valid, these, certainly, are legitimate inferences. 
The doctrine, that, in all cases, where the constitution 
secures rights to states or individuals. Congress has pow- 
er to legislate for the protection and enforcement of those 
rights is original, I think, in that opinion. In view of 
the consequences which must spring from it, it seems 
hardly possible that it can be sustained. 

It is insisted, however, that great weight is due to- 
contemporary construction ; and that the exercise of the 
power of legislation by Congress, in the enactment of the 
law in question, should be received as strong evidence 
of the constitutional right to legislate. But when it is 
considered that this act of Congress is plainly unconsti- 
tutional in some of its provisions; and that, before 
its enactment, all, or nearly all the states, — whose 
practical exposition of their own powers carries equal 
authority with a similar practical exposition by Con- 
gress, — had legislated in reference to fugitives from jus- 
tice or fugitives from service, and that the whole 
of this legislation must be swept from their statute 
books, if the act be held constitutional ; I cannot think 
that the mere claim and exercise of power by Con- 
gress, in derogation of a similar claim and exercise by 
every state Legislature, can have much influence upon 
the determination of the question at issue. Is it not as 
probable that Congress has mistaken the extent of their 
powers, as it is that the state Legislatures mistook the 
extent of theirs? Congress, certainly, without employ- 



INFERENCE FROM NATURE OF PROVISION, WHAT. 105 

ing state authorities, cannot readily execute these pow- 
ers ; and it cannot, constitutionally, impose duties on state 
officers. This objection applies to the provision, in re- 
gard to fugitives from justice, as much as to that in 
regard to fugitives from service. The former undertakes, 
indeed, to impose duties on the Governors of States, and 
if it is constitutional, all state legislation on the 
same subject is unconstitutional. But how can they be 
enforced? Can this Court issue its mandamus to a 
State Executive, and compel the dehvery of a fugitive? 

It is claimed, further, that this power of Congress has 
been sanctioned by judicial decisions. Opinion and 
authority, on this subject, were nearly balanced, at the 
time of the decision in the Prigg case. That decision, 
so long as it shall stand, settles the question, at least for 
this court, in favor of the power; but if the considerations, 
urged in this argument, shall prevail, the honored author- 
ity of this tribunal will be placed in the opposite scale. 

It is said, finally, that the nature of the provision fur- 
nishes solid reasons for the conclusion, that it could not 
have been the intention of its framers to entrust its exe- 
cution to state authorities. This is dangerous ground 
on which to build a construction of the constitution, in 
disregard of the plain import of its terms. It may be 
well met by a direct negative, and by the assertion that 
the nature of the provision proves, that, neither the Con- 
vention, which formed, nor the People, who adopted the 
Constitution, could have intended to entrust to Congress 
any legislative power on the subject. Let it be sup- 
posed that when the clause was under discussion, it had 
been proposed to annex a provision in these words; "and 
Congress shall have power to appoint officers, and pro- 
vide by law, for the arresting and delivering up of per- 



106 SrAlES ALONE COMPETENT TO LEGISLATE. 

sons escaping, and to provide, also, for the punishment 
of all interference with the right herein secured, by har- 
boring, or otherwise:" Can any man beUeve that such 
a clause would have received the assent of the Conven- 
tion^ or, that, a constitution whh such a clause m it, 
could have obtained the ratification of the States? It 
must be remembered that the States existed before the 
Constitution, and that the fundamental law of each assert- 
ed and guarantied the absolute, inherent and mahenable 
rights of all the inhabitants or citizens: and it can 
hardly be supposed that any state, especially any non- 
slaveholding state, would have agreed to a constitution 
which would withdraw, from any of these rights, the am- 
ple shield of the fundamental law, and leave them ex- 
posed to the almost unlimited discretion of Congress, 
and of officers appointed by Congress? If they could, 
they must have strangely forgotten the great principles 
which hallowed their recent stiiiggle. 

Am I mistaken, then, in thinking that the whole argu- 
ment establishes the proposition, that the power to legis- 
late, in reference to escaping servants, is "a power not 
deleo-ated to the United States by the Constitution, nor 
prohibited by it to the states, and is, therefore, reserved 
to the states respectively, or, to the people?" 

Much yet presses for utterance: but I have already 
trespassed too far on the patience of the court. 

I have presented, defectively, doubtless, and, perhaps, 
unsuccessfully, but honestly, and with the best effort of 
mv humble abilitv, the great principles, legal and consti- 
tutional, which, in my judgment, govern this case: and 
now, with a perfect assurance that all I have urged will 
receive from your honors a full, patient, and mdulgent 
consideration, I leave the controversy in your hands. 



CONCLUSION. 107 

It is the chief glory of Courts of Justice, tliat they are 
regarded as the safest sanctuaries of Human Freedorq. 
Mg.y such ever be the honorable distinction of this court ! 

It is a maxiin of the connmon law that he who will 
not favor liberty, shall be held accursed. " Execrandus^ 
qui non favet libertati ! " The courts of England, ever 
presuming, in obedience to this maxim, in favor of free- 
dom, extinguished villeinage, and established an impreg- 
nable barrier against the introduction of a new slavery. 
May I not trust that the favor, shown to Liberty by the 
courts of the Chief Monarchy of Europe, will not be 
allowed to surpass that which Liberty will receive, from 
the courts of the Chief Republic of America? 

I am aware that this court will administer the law as 
it is written in the Constitution: but may I not confidently 
expect that you will not, willingly, allow any construc- 
tion of that honored instrument, which will bring its pro- 
visions into conflict with that other Constitution, which, 
rising, in sublime majesty, over all human enactments, — 
antedating them all, surviving them all, — finds its "seat 
in the bosom of God," and utters its "voice," as "the 
harmony of the world?" 

Upon questions, — such as are some of those involved 
in this case, — which partake largely of a moral and po- 
litical nature, the judgment, even of this Court, cannot 
be regarded as altogether final. The decision, to be 
made here, must, necessarily, be rejudged at the tribunal 
of public opinion — the opinion, not of the American 
People only, but of the Civilized World. At home, as 
is well known, a growing disaffection to the Constitu- 
tion prevails, founded upon its supposed allowance and 
support of Human Slavery: abroad, the national charac- 



108 CONCLUSION. 

hope, and, — I trust it may not be deemed too serious to 
add, — I most earnestly pray, that the judgment of your 
honors in this case, may commend itself to the reason 
and conscience of Mankind ; that it may rescue the Con- 
stitution from the undeserved opprobrium of lending its 
sanction to the idea that there may be property in men ; 
that it may gather around that venerable charter of 
Repubhcan Government the renewed affection and con- 
fidence of a generous People: and that it may win for 
American Institutions the warm admiration and profound 
homage of all, who, everywhere, love Liberty and revere 
Justice. 



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